GEO.  H.  WOOD 


A  TREATISE 


ON 


AMERICAN  ADVOCACY 


A  treatise  covering  succinctly  the  entire  range  of  advocacy,  trial  tactics  and 

legal  ethics,   together  with    the   publication    as    an   appendix 

hereto  of    the  American    Bar  Association's 

Canons  of  Professional  Ethics 


-BY- 


ALEXANDER  H.  ROBBINS 

"/ 

Professor  of  Advocacy  and    Legal  Ethics    in 
he   Saint   Louis  Univer.-ity  Institute  cf  Law. 


SECOND     EDITION 


ST.  LOUIS: 

CENTRAL  LAW  JOURNAL  COMPANY 
1913 


r 

TV  S3  42- 4 


Copyright  1913. 

by 
CKXTRAL  LAW  JOURXAL  COMPANY. 


ST.  LOUIS. 
)  BY  CKXTHAL  LAW  JOURXAL  COMPANY. 


PREFACE  TO  THE  FIRST  EDITION. 


To  the  weary,  storm-tossed  mariner,  seeking  the  safety 
of  the  harbor,  nothing  is  so  welcome,  so  cheering,  so  en- 
couraging, as  a  glimpse  of  the  rays  of  a  friendly 
lighthouse  or  the  warning  sounds  of  the  fog-horns.  So,  also, 
without  stretching  extravagantly  the  simile,  there  comes  to 
the  struggling  professional  man,  buried  in  his  books  or 
overwhelmed,  sometimes  by  the  drudgery  and  the  dry  de- 
tails of  his  practice,  a  sense  of  buoyant  hope  and  a  thrill 
of  encouragement  as  his  eyes  for  a  moment  catch  glimpses 
of  the  high  eminence  of  his  profession  and  behold,  on  the 
summit,  men  who,  like  himself,  have  struggled,  even  as  he 
is  now  struggling,  to  reach  those  places  where  they  now 
sport  themselves  at  will,  conscious  of  their  power  and  en- 
joying the  supreme  confidence  of  the  people.  To  reach  this 
eminence  is  the  advocate's  highest  ambition ;  to  assist  him 
to  do  so  is  the  highest  purpose  of  this  volume. 

The  profession  of  law  sustains  the  most  personal  relation 
to  the  individual  of  all  professional  or  business  relations  of 
life.  The  supreme  characteristic  of  a  great  lawyer,  there- 
fore, is  not  so  much  an  expansion  of  the  brain  as  an  en- 
largement of  the  heart,  a  wide  and  generous  sympathy,  a 
nervous  system  carefully  attuned  to  all  the  passions  and 
prejudices  in  life,  a  man  that  not  only  knows  human  na- 
ture, but  has  an  appreciable  quantity  of  human  nature  in 
him  ;  a  man,  indeed,  whom,  when  his  client  seeks  advice, 
he  finds  not  merely  a  cold-blooded  jurist,  a  profound  oracle 
of  the  law,  but  a  man  strong  in  his  sympathies  and  full  of 
resources  for  evading  or  escaping  difficulty ;  resources  that 
come  not  altogether  from  law  books,  but  from  the  book 
of  experience,  which  he  has  so  diligently  studied,  both  in 
his  own  life  and  the  lives  of  others, — a  man  who,  when  he 


IV 


PREFACE 


stands  before  a  court  or  jury,  stands  not  in  his  own  shoes, 
holding  out  his  client  at  arm's  length  so  as  not  to  be  con- 
taminated by  him  or  by  his  affairs,  but  an  advocate  in  every 
sense  of  the  term,  standing  in  the  place  of  his  client,  taking 
upon  himself  the  burden  of  his  case,  and  enwrapping  him- 
self so  intensely  in  the  feelings  of  his  client  that  words 
burn  on  his  lips  as  he  denounces  the  deceiver,  and  tears 
start  to  his  eyes  as  he  relates  the  sorrows  and  griefs  of  his 
client  under  the  heel  of  the  oppressor;  a  man,  indeed,  who 
struggles  in  defense  of  the  life,  fortune  and  honor  of  his 
client  as  if  it  were  his  own.  Such  is  the  truly  great  law- 
yer, as  distinguished  from  the  jurist.  The  qualifications 
that  go  to  make  up  his  success  cannot  be  learned  out  of 
the  text-books  of  the  law — they  come  only  to  the  man  who 
flirts  with  human  nature;  who  experiences,  as  far  as  pos- 
sible, all  the  passions  of  the  heart  and  all  the  hones,  pleas- 
ures and  disappointments  of  life;  who  communes  with  the 
greatest  exemplars  of  his  profession  anl  carefully  studies 
their  lives,  methods  of  work  and  their  great  efforts  at  for- 
ensic pleading. 

The  ninth  edition  of  the  old  English  work  of  Mr.  Richard 
Harris,  entitled  "Hints  on  Advocacy,"  which  is  well  known 
to  the  profession  and  universally  recognized  as  one  of  the 
best  books  of  its  kind  published,  has  been  taken  as  the 
foundation  for  the  present  treatise.  It  had  two  defects : 
First,  its  arrangement  was  not  logical,  nor  was  the 
matter  easily  accessible;  second,  the  American  reader 
found  much  in  it  which  was  useless  to  him,  and  much 
that  was  not  in  it  of  which  he  very  much  desired  t  » 
be  informed.  To  overcome  these  two  effects  and  thus 
make  the  volume  as  near  perfect  as  possible,  we  have 
made  a  thorough  and  systematic  revision  of  this  standard 
work.  We  have  first  gone  through  Mr.  Harris'  pages  and 
cut  out  all  useless  matter  and  such  as  had  reference  only 
to  the  practice  as  it  existed  in  England.  Secondly,  we  have 
re-read  the  pages  and  subdivided -all  the  matter  into  short 
sections  with  appropriate  sub-headings.  Thirdly,  we  have 


PREFACE  v 

taken  these  sections  and  arranged  them  in  chapters,  under 
significant  titles.  Fourthly,  we  have  taken  the  chapters, 
as  thus  prepared,  and  arranged  them  in  logical  order. 

At  this  point,  while  \ve  had  culled  the  best  of  Mr.  Harris' 
work,  we  had.  as  a  result,  but  a  meager  contribution  to  the 
subject  of  American  Advocacy.  We,  therefore,  proceeded, 
first,  to  compose  four  new  and  entirely  original  chapters  on 
themes  which  had  received  absolutely  no  attention  in  Mr. 
Harris'  work  and  very  little  attention  in  any  other  work 
on  the  subject  of  Advocacy  that  has  come  to  our  attention. 
These  four  new  chapters  are  as  follows:  Chapter  II,  Of- 
fice Work  and  Preparation  for  Trial ;  Chapter  XIV,  Briefs, 
Arguments  and  Methods  of  Speaking;  Chapter  XV, 
Legal  Ethics;  Chapter  XVI,  Ethics — Compensation  and  Ad- 
vertising. We  then  took  up  the  work,  as  thus  completely 
outlined,  subheaded  and  revised,  and  carefully  reviewed 
each  chapter  and  section,  changing  the  language  to  more 
intelligible  expressions  of  the  rules  of  advocacy  as  appli- 
cable to  American  practice,  composing  many  new  and  en- 
tirely original  sections,  interpolating  where  the  original 
text  seemed  to  demand  more  explanation  and  annotating 
throughout  with  appropriate  quotations  and  references. 

We  believe  that  the  work,  as  thus  reconstructed  and  re- 
vised, will  become  an  invaluable  assistant  to  every  lawyer, 
especially  the  young  practitioner,  serving  to  keep  fresh  in 
their  minds  the  great  principles  of  advocacy,  upon  a  proper 
observance  of  which  all  true  success  at  the  bar  so  vitally 
depends. 

St.  Louis,  Mo.  ALEXANDER  H.  ROBBINS. 


PREFACE  TO  SECOND  EDITION. 


In  preparing  for  the  press  the  second  edition  of  this  work 
I  wish  to  acknowledge  the  very  kindly  reception  granted 
to  the  first  edition,  not  only  by  members  of  the  profession, 
but  by  the  law  schools,  so  many  of  which  have  come  to  see 
the  importance  of  giving  more  prominence  to  the  subject 
of  advocacy  and  legal  ethics. 

It  is  partly  in  response  to  the  needs  and  wishes  of  law 
school  instructors  that  I  have  added  a  new  chapter  to  this 
work,  to-wit,  Chapter  1,  Origin,  Qualifications  and  Au- 
thority of  the  Advocate,  which  will  be  found  interesting,  no 
doubt,  to  lawyers  as  well  as  law  students. 

In  order,  moreover,  that  the  field  of  legal  ethics  might  be 
fully  covered,  I  have  added  .as  an  appendix  to  this  edition 
the  American  Bar  Association's  Canons  of  Professional 
Ethics.  Practically  all  boards  of  law  examiners  require  an 
examination  more  or  less  thorough  on  the  provisions  of  the 
code  of  ethics  so  that  no  course  of  instruction  can  be  said  to 
thoroughly  prepare  the  law  student  for  his  license  examina- 
tion that  does  not  familiarize  him  with  the  principles  under- 
lying the  code  of  ethics  and  with  the  specific  provisions  of 
the  official  Canons  of  Professional  Ethics  now  reorganized 
and  enforced  by  the  courts  and  by  bar  associations  in  nearly 
every  state  in  the  Union. 

Corrections  and  additions  have  been  made  in  many  places 
which,  we  trust,  will  serve  to  make  this  edition  even  more 
thorough  and  comprehensive  than  the  first  edition ;  and  it  is 
the  hope  of  the  author  that  the  work  as  now  given  to  the 
press  will  prove  as  interesting  and  valuable  to  the  older 
practioner  as  to  the  law  student. 

St.  Louis,  Mo.  ALEXANDER  H.  ROBBINS. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 
ORIGIN,   QUALIFICATIONS  AND  AUTHORITY  OF  THE   ADVOCATE. 

§     1.     Ancient   Origin   of   Advocacy          ....  1 

2.  The  Rise  of  Advocacy  in  England              ...  4 

3.  "Calling"   the   English   Barrister   to   the    Bar                .  5 

4.  Admission  of  the  English  Solicitor  as  an  Attorney-at- 

Law   and   Solicitor-in-Equity       ....  6 

5.  Distinction    Between    the    Duties    of    Barrister    and 

Solicitor                   ......  8 

6.  The  Lawyer  and  Advocate  in  America      ...  9 

7.  Who   May    Practice   Law   in   America — G  neral    Rules  11 

8.  Who  May  Practice  Law  in  America — Women      .            .  14 

9.  Who  May  Practice  Law  in  America — Corporations        .  16 

10.  Who  May  Practice  Law  in  America — Trust  Companies  18 

11.  Qualifications  of  an  American  Lawyer — Citizenship  and 

Residence                 ......  20 

12.  Qualifications    of    an    American    Lawyer — Good    Moral 

Character                ......  23 

13.  Qualifications  of  an  American  Lawyer — Intellectual  Re- 

quirements of  Admission  .  .  .  .23 

CHAPTER  II. 
PREPARATION  FOR  TRIAL. 

§  14.     Common  Sense           ......  32 

15.  Knowledge  of  Human  Nature          .  .  .  .33 

16.  Consultation  and   the  Writing  of  Legal   Opinions         .  34 

17.  Listening  to  the  Client's  Complaint         .            .            .  3"> 


jjj  TABLE  OF  CONTENTS. 

18.  Sifting  the  Client's  Story 

19.  Arranging  and  Marshaling  the  Evidence 

20.  The  Theory  of  a  Case  and  Its  Importance 

21.  Discovering  and  Determining  (ha  Legal  Outlines 

22.  Preparation  of  Pleadings 

23.  Interviewing  and  Coaching  Witnesses 

24.  Interviewing  the  Adversary  Party — Interrogatories       ,        48 

25.  What  to  do  with  Weak  or  Dangerous  Points  in  the  Line 

of  Battle 

26.  "Reading  Up"  the  Law  of  the  Case 

27.  Preparations  of  Address  to  the  Jury 

28.  The  Three  Cardinal  Requisites 


CHAPTER  III. 
OPENING  PLAINTIFF'S   CASE. 

§  29.  Confidence  in  his  Case 

30.  Narration  not  Argument  in  Opening  Statement 

31.  Anticipating  Defendant's  Case 

32.  Redundancy  of  Expression   in   Opening  Statement 

33.  Ornamentation  and  Illustration  in  Opening  Statement 

34.  Order  and  Arrangement  of  Facts  in  Opening  Statement 

35.  Moderation  in  Opening  Statement 

36.  Length  of  Opening  Statement  .         61 

CHAPTER    IV. 
OPENING  DEFENDANT  S  CASIO. 

§  37.  General  Rules            ......  63 

38.  When  and  Where  to  Open  the  Attack      ...  64 

39.  Effect    of    Argument    in    Demolishing    Plaintiff's    Case  65 

40.  Use  of  Plaintiff's  Witnesses  to  Prove  Defendant's  Case  65 

41.  Force  of  Eloquence  in  Defendant's  Opening  Speech       .  66 

42.  Misstatements  and  False  Representations  by  Defendant  67 

43.  Arrangement   of    Facts    with    Regard    £o    Probabilities  68 

44.  Proper  and   Artistic  Arrangement  of  Evidence  .  68 

45.  Answering  Exaggerated   or   Improbable   Evidence         .  69 

46.  Effect  of  Defendant  Praising  His  Own  Witnesses  .  69 

47.  Points    of    Rhetoric    to    be    Observed    by    Defendant's 

Attorney  .        70 


TABLE  OF  CONTENTS.  ;x 

CHAPTER   V. 
EXAMINATION   IN    CHIEF. 

§  48.  All  of  the  Facts  Must  Be  Elicited  ...         72 

49.  The  Fewest  Possible  Questions  and   Interruptions       .         73 

50.  Proper  and  Improper  Questions      .  .  .  .74 

51.  Irritable   and   Unintelligible  Questioning  .  .         75 

52.  Order   of  Time  to  be  Observed   in  Eliciting  Evidence         76 

53.  Cross-Examining  One's  Own  Witnesses      .  .  .77 

54.  Cautioning  Witnesses  about  Rules  of  Evidence  .         78 
."."..  Leading  a  Witness                .             .             .             .  .79 

56.  Unnecessary  Rapidity  and  Repetition        .  .  .80 

57.  Verbose  Questions  to  be  Avoided  .  .  .80 

CHAPTER  VI. 
CROSS-EXAMINATION. 

§  58.  Knowledge  of  Human  Nature         .  .  .             .82 

59.  Dangers  of  Cross-Examination        .  .  .  .84 

60.  Good  Temper  of  the  Cross-Examiner  .  .  .         8t> 

61.  Prejudice  and   Other  Hostile   Motives  on  the   Part  of 

the  Witness  to  be  Emphasized  on  the  Cross-Exami- 
nation        . .  .  .  .  .  .  .88 

62.  Manner,  Style  and  Tone  of  Voice  .  .  .91 

63.  Asking  Questions  Liable  to  Call  Forth  Adverse  Replies         93 

64.  Cross-Examination   of   Evasive  and   Hostile  Witnesses         93 

65.  Some  Miscellaneous  Observations  .  .  .95 
6fi.     In  Conclusion             ......         96 

CHAPTER  VII. 

RE-EXAMINATION. 

§  67.     General    Principles  .  .  .  .  .98 

68.  Dangers  of  Re-Examination  .  .  .  .99 

69.  Where  the  Cross-Examination  is  favorable  to  the  Re- 

Examiner  ......      100 

70.  Re-Examination  Where  the  Cross-Examination  is  Un- 

favorable to  the  Examiner         ....       100 

71.  Seizing  Opportunities  Offered  by  the  Cross-Examination 

to    Introduce    Matter    Otherwise    Inadmissable         .        101 

72.  Re-Examination   in   Cases  Where   Character  or   Credi- 

bility of  Witness  has  been  Attacked      .  .      102 


x  „         TABLE  OF  CONTENTS. 

73.  Pursuing  an   Equivocal  Reply  of  One's  Own  Witness, 

Elicited  on  Cross-Examination                .                        .  103 

74.  Repetition  of  Evidence  in  Chief  on  Re-Examination     .  104 

CHAPTER  VIII. 
SUMMING  UP  DEFENDANT'S  CASE. 

§  75.     General  Considerations 

76.  Right  to  Argue  upon  Antecedent  Evidence       .            .  107 

77.  Points  of  Danger                                                                   •  107 

78.  Accuracy    and    Exaggeration          .            .                        .  108 

CHAPTER    IX. 

THE  REPLY. 

§  79.     Value  of  the   "Last  Word."  .  .  .  .109 

80.  Securing  Attention  of  Court  and  Jury      .                          .  110 

81.  Flattering  the  Jury             .                        .  110 

82.  Display    of    Self-Confidence  .  .  .  .111 

83.  Personal  Attack  on  Opponent  or  His  Counsel      .            .  112 

84.  Effect  of  an  Earnest  and  Quiet  Manner           '  .            .  112 

85.  Order  and  Arrangement  of  the  Reply       .             .             .  113 
85.     Attacking  Opponent's  Case  First              .                        .  114 

87.  Dealing    with    the    Effect   of    the    Testimony,    not    the 

Testimony    Itself               .....  115 

88.  Importance  to  be  Attached  to  the  Probabilities  of  the 

Evidence      .......  117 

89.  Conciseness  in  Reply           .....  118 

90.  The    Use    of    Illustrations    and    Conventional    Phrases  119 

91.  Appeals   to   Passion   or   Prejudice             .            .            .  119 

92.  A  Temperate  and  Accurate  Style             .            .            .  121 

93.  The  Peroration          .  .  .  .  .  .121 

CHAPTER    X. 
CONDUCT  OF  A   CRIMINAL  PROSECUTION. 

§  94.     Order  of  the  Criminal   Trial         .  .  .  .123 

95.  Prosecution   not   Persecution          ....  125 

96.  Opening  Statement — Avoiding  Argument              .            .  127 

97.  Opening  Statement — Avoiding  Exaggeration                   .  128 

98.  Opening     Statement — Conventional     and     Undignified 

Phrases                                                        .  129 


TABLE  OF  CONTENTS.  xi 

99.     Opening    Statement — Stating    Personal    Belief    as    to 

Guilt  of  Accused  .  .  .  .  .129 

100.  Opening    Statement — Interpreting    the    Indictment    to 

the    Jury  .  .  .  .  .  .130 

101.  Opening   Statement — Only   Facts   Bearing   Directly   on 

the  Issue  to  be  Stated  ....  131 

102.  Opening   Statement — Anticipating   the   Defense  .  132 

103.  The  Evidence — Order  and  Arrangement  .  .  132 

104.  The    Evidence — Overlaying   the   Case   with    too    Much 

Evidence  .  .  .  .  .  .133 

105.  The  Evidence — Felice  Testimony  Not  to  be  Implicitly 

Relied  Upon  ......      134 

106.  The    Evidence — Concentrating    Attack    on    Main    De- 

fenses  of   Accused  .....      135 

107.  The   Evidence — Taking  Advantage  of  the   Defendant's 

Cross-Examination  ....      136 

108.  The  Evidence — How  to  Break  Down  a  False  Alibi  137 

109.  Closing    Address — Temperate    Reply    versus    "Earnest 

Appeal"        .......      140 

CHAPTER  XI. 
CONDUCT  OF  A   DEFENSE   IN  A   CRIMINAL  TRIAL. 

§110.     The  Young  Lawyer  Before  the  Police  Magistrate          .      142 

111.  How  far  Defense  Should  Show  Its  Hand  Before  Com- 

mitting Magistrate  .  144 

112.  How  to  Deal   with  a  Defective  Indictment       .  .  146 

113.  What  and  How  Many  Defenses  to  Make  .  .  147 

114.  Opening   Statement  of   Counsel   for   Defendant  .  147 

115.  Methods  of  Objection  to  Evidence  .            .  .  148 

116.  Emphasizing  Mistakes  of  Inaccurate  Witnesses  .  .  150 

117.  Cross-Examination  by  the  Defense — General    Rules     .  150 

118.  Cross-Examintion     by     Defense — "Drawing     Out"     an 

Opposing  Witness  ....  151 

119.  Cross-Examination    by    the    Defense — How    to    Handle 

Hostile  Witnesses  .....      152 

120.  Whether  or  Not  Witnesses  Should  be  Called  or  Case 

Submitted  on  State's  Evidence  .  .  .      153 

121.  Closing   Address    for    the    Defense — Calling    Attention 

to  Absence  of  Motive  on  Part  of  Accused       .  .      154 

122.  Closing   Address    for    the    Defense — Calling    Attention 

to  Motive  of  Prosecuting  Witness         .  .  .      155 

123.  Closing   Address    for    the    Defense — Explaining    Away 

Difficult    and    Awkward    Points     in    the    Evidence      157 


xii  TABLE  OF  CONTENTS. 

124.  Closing  Address  for    the    Defense — Emphasizing    Good 

Character   of   Accused  ....      158 

125.  Closing    Address    for    ths    Defense — General    Consider- 

ations ......       159 

CHAPTER  XII. 

CLASSES   OF    WITNESSES. 

§126.  The  Lying   Witness               .             .  .  .  .161 

127.  The  Flippant    Witness  .  .  .166 

128.  The  Dogged  Witness                        .  .  .  .168 

129.  The  Hesitating  Witness                  .  .  .  .170 

130.  The  Nervous  Witness           .            .  .  .  .171 

131.  The  Cunning   Witness                      .  .  .  .172 

132.  The  Witness  Partly  True  and  Partly  False  .  .       172 

133.  The  Stupid  Witness              .             .  .  .  .173 

134.  The  Semi-Professional   Witness  .  .  .174 

135.  The  Official    Witness             .             .  .  .  .175 

136.  The  Policeman  as  a  Witness          ....       176 

137.  The  Truthful    Witness                      .  .  .  .178 

138.  The  Convict  as  a  Witness              .  .  .  .180 

139.  The  Private  Detective  as  a  Witness  .  .  .181 

140.  The  Handwriting  Expert  as  a  Witness  .  .       182 

141.  The    Medical    Witness                        .  .  .185 

142.  The   Vanity   Witnesses                     .  .  .  .188 

» 

CHAPTER  XIII. 

TACT  AND  TACTICS. 

§143.  The  Meaning   and   Value   of   Tact  and    Tactics   to   the 

Advocate  .  .  .  .  .  .189 

144.  Delicacy  of  the   Proceeding  to   Impanel  the   Jury       .  192 

145.  Ascertaining   Motives   Tending   to    Influence    the    Jury  194 

146.  Determining   the   Leading   Point   in   the   Case  .  195 

147.  Proper  and  Improper  Openings  .            .            .  195 

148.  What  Witnesses  Should  be  Called  and  in  What  Order  197 

149.  Superior     Value     of     Oral     Testimony     to     Written 

Depositions                           .             .             .  .             .200 

150.  How  to  Take  Care  of  a  Weak  Point  in  a  Case            .       201 

151.  Admissions  by  Counsel  or  His  Client       .  .             .       202 

152.  Calculating  the  Value  cf  the  Evidence  or  tho  Verdict 

of  the  Jury  .      202 


TABLE  OF  CONTENTS.  xjjj 

153.  The  Value  of  the  "Last  Word"  .  ,  .204 

154.  Adaptation     and     Arrangement     of     the     Evidentiary 

Forces  in  the  Closing  Address     ....  205 

155.  The     Court — Overcoming    the     Preconception     of    the 

Judge                       ......  205 

156.  The  Court — Assuming  That  the  Court  is   Ignorant  of 

the   Law                  ......  206 

157.  How  to  Meet  an   Unscrupulous  and    Ill-Xatured  Oppo- 

nent                          ......  207 

158.  Under  What  Condition  an  Advocate   Profits  by  Delay  207 

159.  Danger  in  Wandering  from  the  Main  Point  209 


CHAPTER  XIV. 

BRIEFS.    ARGUMENTS   AND   METHODS  OF   SPEAKING. 

?160.     The  Lawyer's  Brief — Its  Requisites  and  Value  .       212 

161.  Addressing  the   Court — Requisites  and  Value  of  Oral 

Argument  ......       216 

162.  Addressing  the  Court — Discussion  of  Principle  versus 

the  Citation  of  Authority  ....  218 

163.  Addressing  'the  Court — Interruptions  by  the  Court     .  220 

164.  Addressing  the   Jury — General   Considerations  .  221 

165.  Addressing    the    Jury — A    Temperate    Style    Before    a 

Jury  .......      223 

166.  Addressing    the    Jury — Winning    the    Master    Mind    of 

the    Jury  .  .  .  .  .  .225 

1G7.     Addressing  the  Jury — "Oratory"  Before  a  Jury  .  .      226 

168.  Forensic  Eloquence — Its  Value  and  Requisites    .  .       227 

169.  Forensic  Eloquence — Genius  or  Hard  Work  as  a  Requi- 

site .......       228 

170.  Forensic    Eloquence — Mental    Absorption    and    Concen- 

tration         .......      231 

171.  Forensic   Eloquence — The  Value  of  a  Personal   Inqui- 

sition .  •  .  .  .  .  .233 

172.  Forensic  Eloquence — How  to  Meet  an  Attack    .  .      234 

173.  Forensic  Eloquence — Discussion  of  Adverse  Authorities       235 

174.  Forensic    Eloquence — Order,   Arrangement    and    Peror- 

ation             .......  236 

175.  Elocution — Cultivation  of  the  Powers  of  Speech          .  237 

176.  Elocution — Imitation  and  Affectations  of  Speech           .  242 

177.  Danger  of  Achieving  a  Reputation  as  a  Wit     .            .  243 

178.  Appropriate  Physical  Gestures  and  Facial  Expressions 

in   Speaking  .  .  .  .  .243 


XJV  TABLE  OF  CONTENTS. 

CHAPTER  XV 
LEGAL  ETHICS. 

§179.  General  Code  of  Ethics         .            .  .            .  .247 

180.  Code  of  Legal  Ethics           .             .  .             .  .249 

181.  Inviolability  of  the  Code  of  Ethics  .            .  .250 

182.  To  What  Extent  Professional  Conduct  is  Affected  by 

the   Code  .   ,         .  .  .  .  .252 

183.  Methods  of  Enforcing  the  Code — By  Court  Proceedings       254 

184.  Methods     of     Enforcing     the     Code — By     Profesional 

"Courts  of  Honor"  .....       256 

185.  The  Advocate's  Relation  to  the  State — General  Consid- 

erations       .  .  .  .  .  .  256 

186.  The  Advocate's   Relation   to   the   Court — General   Con- 

siderations .  .  .  .  .  .258 

187.  The   Advocate's   Relation   to   the   Court— Attitude    To- 

wards the  Judge  .....      261 

188.  The   Advocate's   Relation   to   the   Court — Attitude    To- 

wards the  Jury      ......      262 

189.  The   Advocate's   Relation   to   the   Court — Attitude    To- 

wards His  Own  and  Opposing  Witnesses          .  .      263 

190.  The    Advocate's    Relation    to    the    Court— Should    the 

Advocate  Practice  in  a  Court  in  Which  the  Judge 

is  His  Near  Kinsman       .....      265 

191.  The  Advocate's  Relation  to  the  Court — The  Impersonal- 

ity of  the  Advocate          .....      267 

192.  The  Advocate's  Relation  to  His  Client— The  Suprema- 

cy of   the   Client's   Interest        ....      270 

193.  The   Advocate's    Relation   to    His    Client— Is    Truth    a 

Higher  Obligation?  .  .  .  .  ...      271 

194.  The  Advocate's  Relation  to  His  Client— Defending  One 

Whom  the  Advocate  Believes  to  be  Guilty  ,  .      274 

195.  The  Advocate's   Relation   to   His   Client — Becoming   a 

Party    to    a    Fraud,    or    Maintaining    Harassing    or 
Oppresive  Litigation          .....      275 

196.  The  Advocate's   Relation   to    His   Client — Use   of    Im- 

proper  Methods  or   Influences  .  .  .      277 

197.  The   Advocate's   Relation    to  His    Profession — General 

Considerations        ......      278 

198.  The  Advocate's  Relation  to   His   Profession — Attitude 

Towards    Opposing    Counsel         .  .  .       280 


TABLE  OF  CONTENTS.  xv 

CHAPTER  XVI. 
COMPENSATION  AND  ADVERTISING. 

J199.     Compensation — General    Considerations                .            .  282 

200.  Compensation — Regulating  the  Amount  of  the  Fee     .  284 

201.  Compensation — Contingent  Fees                  .             .             .  286 

202.  Compensation — When   an   Advocate   May   Contract   for 

His  Services  on  a  Salary  Basis  ....  289 

203.  Advertising — General  Considerations         .             .             .  290 

204.  Advertising — Legal    Directories   and   Newspaper   Noto- 

riety             .......  292 

205.  Advertising — Divorce    Advertising              .             .             .  294 

206.  Advertising — Politics    as    an    Advertising    Medium        .  296 

207.  Advertising — Social    Acquaintance    and    Club    Life       .  297 

208.  Advertising — Pretending   to   be    Learned   or   Whelmed 

with    Business  .  .  .  .  .298 

209.  Advertising — Employment   of   Runners                .            .  299 

210.  Advertising — "Buying  Up"  Causes  of  Action     .             .  301 

211.  Advertising — Stealing     Another     Attorney's     Practice  301 

212.  Advertising — Office    Furniture    and    Modern    Business 

Methods  .  .  .  .  .  .302 

213.  Advertising— The   Final   Test  of   Advertising   Methods  303 

APPENDIX. 
A.      CANONS    OP    PROFESSIONAL    ETHICS. 

1.  The   Duty   of   the   Lawyer   to   the   Court            .            .  306 

2.  The      Selection      of      Judges        .  .  .  .306 

3.  Attempts  to  Exert  Personal  Influence  on  the  Court     .  307 

4.  When  Counsel  for  an   Indigent  Prisoner            .            .  307 

5.  The  Defence  or  Prosecution  of  Those  Accused  of  Crime  307 

6.  Adverse     Influences     and     Conflicting     Interests        .  307 

7.  Professional   Colleagues   and   Conflict   of   Opinion        .  308 

8.  Advising  Upon  the  Merit's  of  a  Client's  Cause            .  309 

9.  Negotiations  With  Opposite  Party  .  .  .309 

10.  Acquiring    Interest    in    Litigation            .            .            .  309 

11.  Dealing    With    Trust    Property       .            .  309 

12.  Fixing    the     Amount     of     the     Fee            .            .        .  309 

13.  Contingent  Fees            .            .            .            .  310 

14.  Suing  a  Client  for  a  Fee            .            .            .            .    .  310 

15.  How  Far  a  Lawyer  May  Go  in  Supporting  a  Client's 

Cause  310 


xvj  TABLE    OF    CONTENTS. 

16.  Restraining    Clients    From    Impropertus       .  .     .  311 

17.  IIl-Feeling  and  Personalities  Between  Advocates  .  311 

18.  Treatment    of    Witnesses    and    Litigants             .  .  312 

19.  Appearance  of  Lawyer  as  Witness  for  His  Client  .  312 

20.  Newspaper  Discussion  of  Pending  Litigation  .     .  312 

21.  Punctuality     and     Expedition             .             .             .  .  312 

22.  Candor     and     Fairness             .....  313 

23.  Attitude    Toward    Jury             .             .             .  313 

24.  Right  of  Lawyer  to  Control  the  Incidents  of  the  Trial  314 

25.  Taking     Technical    Advantage    of    Opposite    Counsel; 

Agreements     With     Him            .            .            .  .  314 

26.  Professional  Advocacy  Other  Than  Before  Courts  .  314 

27.  Advertising,   Direct   or   Indirect             .             .  .     .  314 

28.  Stirring  Up   Litigation,   Directly    or    Indirectly  .  315 

29.  Upholding  the  Honor  of   the   Profession            .  .  316 

30.  Justifiable   and     Unjustifiable     Litigation  .  316 

31.  Responsibility    for    Litigation            .  316 

32.  The    Lawyer's    Duty    in    Its    Last    Analysis        .  .  317 

B.      IDEALS   OF    THE    AMERICAN    ADVOCATE. 

A   Synposium  321 


AMERICAN  ADVOCACY 


CHAPTER  I. 


ORIGIN,   QUALIFICATIONS   AND   AUTHORITY   OF   THE 
ADVOCATE. 


1.  Ancient   Origin   of   Advo-   | 

cacy. 

2.  The  Rise  of  Advocacy  in 

England. 

3.  "Calling"      the      English 

Barrister  to   the   Bar. 

4.  Admission  of  the  English 

Solicitor  as  an  Attor- 
ney-at-Law  and  Solici- 
tor-in-Equity. 

5.  Distinction   Between    the 

Duties  of  Barrister  and 
Solicitor. 

G.  The  Lawyer  and  Advo- 
cate in  America. 

7.  Who  May  Practice  Law 
in  America  —  General 
Rules. 


§     8.     Who    may    Practice    Law 

in  America — Women. 
9.     Who    May    Practice    Law 
in       America — Corpora- 
tions. 

10.  Who    May    Practice    Law 

in  America  —  Trust 
Companies. 

11.  Qualifications        of       an 

American  L  a  w  y  e  r — 
Citizenship  and  Resi- 
dence. 

12.  Qualifications        of        an 

American  L  a  w  y  e  r — 
Good  Moral  Character. 

13.  Qualifications        of        an 

American  L  a  w  y  e  r — 
Intellectual  Require- 
ments  of  Admission. 


§  1.  Ancient  Origin  of  Advocacy.— An  advocate  is 
primarily  one  who  speaks  for  another.  In  this  sense, 
advocacy  is  one  of  the  oldest  institutions  in  human 


2  AMERICAN     ADVOCACY. 

history.  Prom  the  time  that  Moses  became  the  advo- 
cate of  the  oppressed  Israelites  before  the  Court  of 
the  Pharaohs  of  Egypt  to  the  present  time,  the  prin- 
ciple has  always  been  recognized  that  one  could  choose 
another  to  speak  or  plead  for  him. 

Advocacy  has  always  been  a  most  honorable  calling. 
St.  John  speaks  of  the  risen  Christ  as  an  Advocate. 
"We  have  an  advocate  with  the  Father,"  says  John, 
"Jesus  Christ,  the  Righteous. " 

The  great  orators  of  Greece  and  Borne  discharged 
the  duties  of  advocates  with  imperishable  honor  to 
themselves  and  often  with  much  success  to  their 
clients. 

In  ancient  Greece,  while  the  advocate  did  not  flour- 
ish professionally  with  as  much  liberty  and  success 
as  he  did  in  Rome,  he  nevertheless  exerted  hardly  any 
the  less  influence  on  the  course  of  justice  in  Grecian 
tribunals.  While  relatives  and  friends  were  some- 
times permitted  to  speak  for  a  litigant  in  court,  the 
usual  practice  was  for  the  great  orators  or  writers  of 
Greece  to  hear  the  client's  complaint  and  then  com- 
pose for  him  an  oration  which  the  litigant  himself  read 
in  open  court.1 

In  the  era  of  the  Roman  Republic  it  was  considered 
not  only  the  duty  but  the  high  privilege  of  the  patrician 


i  "Before  the  tribunals  of  Athens,  although  the  party  pleaded  his 
own  cause,  it  was  usual  to  have  the  oration  prepared  "by  one  of  an 
order  of  men  devoted  to  this  business,  and  to  compensate  him  lib- 
erally for  his  skill  and  learning.  Many  of  the  orations  of  Isocrates, 
which  have  been  handed  down  to  us,  are  but  private  pleadings  of 
this  character.  He  is  said  to  have  received  one  fee  of  twenty 
talents,  about  eighteen  thousand  dollars  of  our  money,  for  a  speech 
that  he  wrote  for  Nicocles,  King  of  Cyprus.  Still,  from  all  that 
appears,  the  compensation  thus  received  was  honorary  or  gratui- 
tous merely."  Sharswood's  Professional  Ethics,  p.  137. 


ORIGIN  AND  QUALIFICATIONS  OF  THE  ADVOCATE.  3 

to  assist  and  protect  his  dependents  and  perhaps  oth- 
ers who  sought  his  assistance,  and  for  that  purpose  he 
often  entered  the  tribunals  of  justice  to  plead  their 
cause.  Thus  'arose  the  highest  order  of  Roman  ad- 
vocate, the  pat r onus  causorum  or  patron.  No  fees 
were  charged  for  such  services  although  sometimes 
a  gratuity  or  lionororium  would  be  accepted  by  the 
patron  as  a  gift.  The  patron  was  held  in  very  high 
esteem  but  the  professional  ad  vocal  us  was  considered 
at  that  time  an  abomination.  Statutes  were  passed, 
prominent  among  which  was  the  Cincian  Law,  which 
prohibited  the  advocate  to  charge  or  receive  any  fee 
for  his  services. 

Later,  in  the  era  of  the  Roman  Empire,  the  Cincian 
law  was  ignored  and  the  professional  advocatus  re- 
ceived public  recognition  and  his  qualifications,  duties 
and  manner  of  compensating  him  for  his  services,  were 
regulated  by  statute.  Professional  advocacy  then  rose 
to  an  honorable  calling  and  gradually  supplanted  the 
ancient  and  more  distinctly  honorable  relation  of  pa- 
tron and  client.  Into  all  countries,  therefore,  where 
the  civil  law  has  gone,  the  advocatus  has  followed  and 
he  is  still  called  by  that  name  or  some  derivative  there- 
from. 

We  should  not  fail  to  refer  in  this  connection  to 
the  Roman  juris  consult  who  was  the  confidential  le- 
gal adviser  of  the  Roman  people.  He  frequented  the 
Roman  Forum  being  given  the  privilege  of  "practic- 
ing" there  by  a  public  introduction.  His  knowledge 
of  the  law  was  superior  to  that  of  the  patron  and  ad- 
vocate and  his  advice  was  eagerly  sought  by  both 
judge  and  litigant.1 

i  "On  the  public  days  of  market,  or  assembly,  the  masters  of  the 
art  were  seen  walking  in  the  forum,  ready  to  impart  the  needful 


4  AMERICAN     ADVOCACY. 

§  2.  The  Rise  of  Advocacy  in  England.— Very  early 

in  the  history  of  England,  justice  was  crudely  and  ar- 
bitrarily administered.  The  village  moots,  the  shire 
courts  and,  in  feudal  times,  the  barons'  courts,  ad- 
ministered justice  without  much  formality.  A  lawyer 
was  not  a  necessity.  But  an  advocate,  one  who  could 
speak  for  the  accused,  was  not  unknown.  This  duty 
was  usually  performed  by  priest  or  monk  whose  edu- 
cation fitted  him  for  this  service.  Later,  laymen,  es- 
pecially among  the  nobility,  trained  themselves  for 
this  service,  until  under  the  reign  of  Henry  III  we  find 
a  strong  tendency  to  limit  this  duty  to  specially  train- 
ed laymen,  who  were  in  that  reign  organized  into  what 
were  called  the  Inns  of  Court,  which  were  given  exclu- 
sive power  to  extend  a  call  to  the  bar  and  provide  the 
qualifications  therefor.  The  study  of  law,  also,  at  least 
for  purposes  of  practice,  was  prohibited  in  any  other 
place. 

There  are  four  common  law  Inns,  to-wit:  Lincoln's 
Inn,  the  Inner  Temple,  the  Middle  Temple,  and  Gray's 
Inn.  They  are,  and  have  always  been,  the  leading  law 
schools  of  the  empire.  A  student  enters  one  of  these 
Inns  and  tarries  until  he  receives  his  degree  and  is 
" called"  to  the  bar.  The  barristers  usually  have  their 
chambers  in  or  near  these  Inns  and  give  of  their  time 
and  learning  in  lecturing  to  the  students.  There  are 
also  eight  Chancery  Inns,  which  are  exclusively  schools 


advice  to  the  meanest  of  their  fellow  citizens,  from  whose  votes  on 
a  future  occasion,  they  might  solicit  a  grateful  return.  As  their 
years  and  honors  increased,  they  seated  themselves  at  home,  on  a 
chair  or  throne,  to  expect  with  patient  gravity  the  visits  of  their 
clients,  who  at  the  dawn  of  day,  from  the  town  and  country,  began 
to  thunder  at  their  doors."  Gibbon's  Decline  and  Fall  of  The 
Roman  Empire,  c.  xxiv. 


ORIGIN  AND  QUALIFICATIONS  OF  THE  ADVOCATE.  5 

of  law  as  no  call  to  the  bar  is  extended  to  any  but 
students  of  the  Inns  of  court.1 

§  3.  Calling  the  English  Barrister  to  the  Bar.— 
Upon  completing  his  three  year  course  of  studies  and 
taking  his  final  examination  under  exclusive  super- 
vision of  the  "benchers"  of  the  Inns  of  Court,  the 
student  receives  his  "call"  to  the  bar.  He  then  be- 
comes a  junior  counsel  and  practices  for  the  first  ten 
years,  at  least,  "without"  the  bar.  He  is  therefore 
called  an  "outer"  or  "utter"  barrister.  Inside  the 
bar  sit  the  King's  counsel.  They  are  appointed  by 
the  King,  or  rather  by  the  King's  legal  adviser  and 
representative,  the  Lord  Chancelor.  They  are  dis- 
tinguished from  the  junior  counsel  by  the  fact  that 
they  alone  have  the  privilege  of  practicing  "within" 
the  bar  and  are  further  distinguished  by  the  silk  gown 
and  full  bottom  wig.  They  are  selected  from  among 
the  junior  barristers  of  ten  years'  practice,  in  front 
of  whom  they  sit  in  court  and  for  whom  they  usually 
act  as  "leaders"  in  any  case  in  which  both  may  be  en- 
gaged. No  pecuniary  advantage  attaches  to  a  King's 
counsel  except  the  right  to  larger  fees.  He  also  has 
precedence  in  speaking  and  in  gaining  the  ear  of  the 
court. 

The  term,  "sergeants  at  law,"  was  given  to  the  ear- 
liest known  licensed  practitioners  of  law  in  England. 
Their  rights  and  prerogatives  were  very  similar  to 
those  of  the  King's  Counsel  with  whom  they  have 
gradually  merged  and  the  term  itself  has  sunk  into 
desuetude.2 

1  For  a  full  account  of  the  origin  of  the  Inns  of  Court  and  of 
early  English  practice,  see  1  Blackstone's  Com.  23,  et  seq.  See, 
also,  Reeves'  History  of  English  Law. 

-  "The  first  persons  regularly  licensed  to  appear  as  advocates  in 


6  AMERICAN     ADVOCACY. 

§  4.  Admission  of  the  English  Solicitor  as  an  At- 
torney at  Law  and  Solicitor  in  Equity.— In  England 
the  barrister  is  purely  an  advocate  and  adviser.     All 
other  duties  usually  appertaining  in  this  country,  to 
an  attorney-at-law  are  in  England  performed  by  the 
solicitor.     Owing  to  the  great  jealousy  existing  be- 
tween these  two  great  divisions  of  the  same  profes- 
sion there  is  very  little  communication  between  them. 
Therefore  one  cannot  pass  from  one  branch  of  the 
profession  to  the  other  except  with  great  difficulty.1 
The  prerogatives  of  the  solicitor  are  not  so  ancient 
nor  so  honorable  as  those  of  the  barrister  and  for 
this  reason  the  latter  regards  himself  as  belonging  to 
a  higher  order  of  professional  aristocracy  and  seeks 
to   retain   his   ancient   privileges    and   honors   intact. 
Nevertheless,  solicitors  have  by  the  efforts  of  their 
great  and  powerful  organization,  known  as  the  "In- 


the  King's  courts  were  called  'sergeants'  although  their  full  official 
title  seems  to  have  been  Servientes  Domini  Regis  ad  legum;  that 
Is,  Servants  at  law  of  our  lord,  the  king."  Unlike  all  prior  advo- 
cates they  were  a  part  of  the  court  itself;  were  regularly  appoint- 
ed by  royal  patent;  were  admitted  only  upon  taking  an  oath;  had 
a  monopoly  of  all  practice,  and  were  directly  amenable  to  the  king 
as  parts  of  his  judicial  system.  The  fundamental  ideas  involved  in 
the  creation  of  this  class  has  never  been  abandoned,  and,  notwith- 
standing that  the  class  itself  by  the  name,  "sergeants"  has  ceased 
to  exist,  they  are  still  the  distinguishing  characteristics  of  the  bar 
in  all  countries  where  the  common  law  prevails.  Warvelle's  Es- 
says in  Legal  Ethics,  p.  29. 

i  A  solicitor  wishing  to  be  a  barrister  must  voluntarily  get  him- 
self struck  off  the  rolls  as  a  solicitor  and  enter  as  a  student  one  of 
the  Inns  of  Court.  And  a  barrister  wishing  to  be  a  solicitor  must 
first  of  all  be  disbarred  voluntarily  and  then  be  articled  as  a  clerk 
for  at  least  three  years  to  a  practicing  solicitor.  Where  either  a 
barrister  or  a  solicitor  has  been  in  practice  for  five  years,  the 
period  of  apprenticeship  and  study  in  either  case  is  very  materially 
reduced. 


ORIGIN  AND  QUALIFICATIONS  OF  THE  ADVOCATE.  7 

corporated  Law  Society  of  the  United  Kingdom" 
materially  raised  the  standard  of  their  own  profes- 
sion. 

The  solicitor  while  not  a  member  of -the  bar  is  an 
officer  of  the  court.1  His  education  is  greater  than 
that  of  the  barrister  in  that  it  is  more  varied.  He 
must  know  more  than  the  mere  theory  of  the  law  and 
its  procedure.  He  must  understand  its  application  to 
business  and  human  affairs.  He  is  the  closest  advisor 
and  most  confidential  counsel  in  the  world.  The  en- 
tire organization  of  business  in  England,  the  settlement 
of  estates  for  widows  and  orphans,  conveyancing, 
bankruptcy,  divorce  and  separation,  family  difficulties 
and  the  public  sale  of  real  and  personal  property  are 
under  his  exclusive  supervision. 

The  education  of  the  student  desiring  to  become  a 
solicitor  is  regulated  by  the  Incorporated  Law  So- 
ciety who  maintain  schools  for  that  purpose  and  pro- 
vide for  the  final  examinations.  To  entitle  a  person 
to  become  a  solicitor,  he  must,  by  contract  in  writing, 
be  ''articled"  as  a  clerk  to  some  practicing  solicitor 
for  a  period  of  five  years.2  At  the  end  of  his  term  he 


i  While  members  of  the  bar  are  solely  amenable  to  the  "bench- 
ers" of  their  respective  Inns,  solicitors,  who  are  officers  of  the 
court,  are  subject  to  the  control  of  the  judges.  The  examination  of 
students  and  their  admission  are  moreover  regulated  by  statute, 
and  no  person  is  permitted  to  act  as  a  solicitor  who  is  not  admitted 
and  otherwise  qualified  according  to  the  provisions  of  the  Solici- 
tor's Acts. 


-  Graduates  of  any  university  in  England  need  serve  as  clerks 
for  a  period  of  three  years  only.  Moreover  the  judges  of  the  Su- 
preme Court  may  sometimes  in  their  discretion  reduce  the  term  of 
clerkship.  Before  a  person  can  be  articled,  however,  he  must  pass 
a  preliminary  examination  to  show  the  extent  of  his  general  learn- 


g  AMERICAN     ADVOCACY. 

takes  the  final  examination  provided  for  by  the  society 
and  is  then  ready  to  present  himself  to  the  court  for 
admission  as  a  Solicitor  of  the  Supreme  Court.1 

§  5.  Distinction  Between  the  Duties  of  Barrister 
and  Solicitor.— Why  there  should  be  the  distinction 
that  exists  between  barrister  and  solicitor  in  England 
and  wherein  the  necessity  exists  for  such  a  hard  and 
fast  line  of  separation  are  conundrums  to  the  Ameri- 
can lawyer  and,  we  might  add,  to  the  English  lawyer 
as  well. 

The  first  distinction,  aside  from  the  peculiar  cos- 
tumes of  the  barrister  and  his  station  of  vantage  in 
the  court  room,  between  the  solicitor  and  barrister  is 
as  to  the  character  of  their  respective  clients.  "While 
all  the  world  might  if  he  could  get  it,  be  the  client  of 
a  solicitor,"  says  Mr.  T.  W.  Tempany,  of  London, 
Eng.,  "a  barrister's  clients  are  only  solicitors;  the 
former  being  prohibited  from  taking  cases  or  work 
from  the  general  public  without  the  intervention  of  a 
solicitor,  and  as  a  fact  it  is  but  rarely  that  a  barrister 
sees  the  actual  client." 

Again,  barristers  cannot  enter  into  partnership  be- 
tween themselves  or  with  solicitors  while  the  latter 
may  form  partnerships  at  will. 

ing  in  rhetoric,  grammar,  arithmetic,  geography,  Latin,  English  his- 
tory, and  any  two  of  the  following  languages:  Greek,  French, 
German,  Spanish  and  Italian. 

i  Previous  to  the  Judicature  Act  of  1873,  it  was  customary  for  a 
solicitor  to  be  admitted  in  both  the  Court  of  Chancery  and  the 
Court  of  King's  Bench;  in  the  former  court  before  the  Master  of 
the  Rolls  as  a  solicitor  in  equity,  and  in  the  latter  before  the  Lord 
Chief  Justice  of  England,  as  an  attorney  at  law.  This  act,  however, 
has  abolished  the  title  of  attorney-at-law  and  the  one  general  title 
of  "Solicitor  of  the  Supreme  Court"  is  applied  to  all  practitioners, 
the  one  admission  before  the  Master  of  the  Rolls  being  alone  suffi- 
cient. 


ORIGIN  A/W  QUALIFICATIONS  OF  THE  ADVOCATE.  9 

The  barrister  is  an  advocate  purely  and  simply  al- 
though he  may  advise  in  his  chambers.  He  is  there- 
fore an  expert  in  the  theory  of  the  law  and  in  his  un- 
derstanding of  the  technicalities  of  pleading  and  of 
the  rules  regulating  the  introduction  of  evidence.  He 
alone,  also,  has  the  ear  of  the  court,  a  solicitor  being 
absolutely  denied  the  right  of  an  audience  except  in 
chambers. 

The  solicitor  hears  the  client's  complaint,  prepares 
his  evidence,  interviews  his  witnesses,  determines  the 
remedy  and  prepares  his  brief.  The  barrister  may  or 
may  not  be  asked  to  prepare  the  pleadings  although  in 
difficult  cases  his  advice  is  sought  by  the  solicitor. 
The  latter,  however,  attends  upon  hearings  in  cham- 
bers of  all  interlocutory  proceedings  and  the  barrister 
handles  the  case  only  when  it  is  ready  for  trial.  Here 
he  displays  his  special  ability  as  an  advocate,  as  an 
examiner  of  witnesses,  as  one  having  ability  to  ex- 
pose perjury  and  to  influence  favorably  the  minds  of 
the  court  and  jury. 

§  6.  The  Lawyer  and  Advocate  in  America.— In 
America,  although  some  have  thought  to  make  a  dis- 
tinction between  an  attorney  at  law  and  solicitor  in 
equity  there  is  in  fact  no  distinction  between  these 
terms;  and  the  one  term,  attorney-at-law,  covers  the 
whole  range  of  professional  activity.  None  of  the 
ancient  rights,  privileges  and  prerogatives  of  the 
English  barrister  obtain  in  this  country.  Indeed,  it 
may  be  accurately  stated  that  the  American  lawyer  is 
rather  the  English  solicitor  possessing,  however,  all 
the  professional  rights  and  duties  of  the  English  bar- 
rister, but  without  his  peculiar  privileges  and  social 
rank.  While  the  position  of  the  American  lawyer  is 
an  honorable  one  it  entitles  him  to  no  social  prestige. 


IQ  AMERICAN     ADVOCACY. 

On  the  other  hand,  the  fact  that  he  is  an  advocate  as 
well  as  a  solicitor  makes  him  amenable  to  most  of  the 
ethical  rules  that  control  the  conduct  of  the  English 
barrister.  Many  of  the  controversies,  therefore,  be- 
tween lawyers  in  this  country  on  questions  of  ethics 
arise  from  the  failure  to  take  into  consideration  this 
two-fold  character  of  the  American  lawyer.  However, 
wliile  the  ethical  and  social  position  Of  the  American 
lawyer  will  probably  never  reach  that  of  the  English 
barrister  the  tendency  is  to  raise  the  standard  higher 
than  that  of  the  solicitor  and  to  approximate  as  near 
as  may  be,  the  ethical  ideals  of  the  English  advocate. 

Mr.  Weeks,  in  his  work  on  Attorneys-at-Law,  says : 
"In  the  United  States,  there  is  no  distinction  between 
barristers  and  attorneys.  Every  lawyer,  or  'counsel' 
is  permitted  to  take  every  kind  of  business;  he  may 
generally  argue  a  case  in  the  highest  courts,  or  write 
letters  to  delinquent  debtors,  he  may  himself  conduct 
all  the  proceedings  in  a  cause,  confer  with  the  client, 
issue  the  writ,  draw  the  declaration,  get  together  the 
evidence  and  manage  the  trial  when  it  comes  on  in 
court."  He  might  have  added  also  that  the  American 
lawyer  may  and  often  does  invest  money  for  clients, 
investigate  titles,  write  insurance,  draw  mortgages, 
wills,  leases  and  other  conveyances,  sell  real  estate, 
collect  rents  and  in  doing  all  of  these  things  he  is  not 
departing,  in  the  least,  from  the  duties  of  a  solicitor 
under  the  English  practice. 

"We  make  no  doubt  that  the  profession  of  the  lawyei 
in  America  with  only  a  slightly  lower  standard  than 
that  of  the  English  barrister  and  a  somewhat  higher 
position  than  that  of  the  English  solicitor,  is  far  pref- 
erable to  both  lawyers  and  clients  than  the  English 
system.  The  young  junior  barrister  will  starve  more 


ORIGIN  AND  QUALIFICATIONS  OF  THE  ADVOCATE          H 

quickly  and  with  greater  agony  than  the  young  legal 
fledgeling  in  America,  for  the  single  reason  that  the 
former  cannot  reach  the  client  by  any  of  the  innocent 
subterfuges  used  by  an  American  lawyer.  He  cannot 
reach  the  client  at  all;  he  must  wait  until  he  can  secure 
the  backing  of  some  solicitor,  although  conscious  of  his 
power  and  ability  to  handle  a  case  in  court.  No  special 
privileges  granted  to  King's  Counsel  in  England  give 
to  the  older  American  lawyer  any  power  to  keep  the 
younger  practitioner  from  proving  his  ability  and  it  not 
infrequently  happens  that  lawyers  are  at  the  bar  less 
than  ten  years  in  this  country  who  have  succeeded  in 
far  outstripping  those  older  in  practice  simply  by  rea- 
son of  their  superior  ability  as  advocates.  There  is  a 
free  fair  chance  at  the  American  bar  for  every  licen- 
tiate and  no  "mute,  inglorious"  Erskine  ever  blooms 
or  blushes  unseen  and,  what  is  still  more  to  the  point, 
unretained. 

There  is  no  question,  however,  but  that  the  American 
lawyer 's  highest  ideal  is  the  great  advocate.  Advocacy 
is  still  regarded,  and  properly  so,  as  the  highest  pin- 
nacle of  professional  attainment.  A  lawyer,  for  in- 
stance, may  succeed  financially  as  a  corporation  ad- 
visor, or  as  a  real  estate  expert,  or  as  a  great  jurist 
or  law  writer  and  teacher,  but  he  is  never  regarded  as 
a  great  lawyer  until  he  has  proven  himself  to  be  also 
a  great  advocate.  Evarts,  Choate  and  0 'Conor  are 
names  that  stand  preeminently  at  the  head  of  the 
American  bar  and  they  stand  there  as  great  advo- 
cates, as  those  who  not  only  knew  the  law  but  knew 
also  how  to  secure  for  their  clients  the  application  of 
the  remedies  which  it  offers  for  the  infringement  or 
impairment  of  rights  to  life,  liberty  or  property. 

§  7.  Who  May  Practice  Law  in  America— General 
Rules.— The  right  to  appear  as  an  advocate  in  a  court 


12  AMERICAN     ADVOCACY. 

of  law  in  America  is  a  privilege  and  not  a  constitu 
tional  right,1  and  is  to  be  distinguished  from  the  right 
of  a  party  plaintiff  or  defendant  to  appear  pro  se 
subject  to  no  restriction  on  his  right  to  so  appear. 
An  advocate  appears  in  court  not  for  himself,  but  for 
another  and  this  right  is  a  franchise  and  purely  statu- 
tory.2 In  some  states  the  constitutions  prescribe  the 
qualifications  of  attorneys,  in  others,  these  qualifica- 
tions are  prescribed  by  the  legislature,  but  in  all  cases 
the  appointment  is  made  by  the  court.  The  admission 
or  the  disbarment  of  an  attorney,  therefore,  is  a  ju- 
dicial proceeding  and  not  a  mere  ministerial  act.3 


1  The  right  to  practice  law  is  not  "property"  nor  a  "contract" 
within  the  constitutional  meaning  of  those  terms.  Cohen  v.  Wright, 
22  Cal.  307.  After  receiving  his  license,  however,  an  attorney's  right 
is  "something  more  than  a  mere  indulgence  revocable  at  the  pleas- 
ure of  the  court  or  at  the  command  of  the  legislature.     It  is  a  right 
of  which  he  can  only  be  deprived  by  the  judgment  of  the  court,  for 
moral  or  professional  delinquency."     Justice  Field  in  Ex  parte  Gar- 
land, 4  Wall.  (U.  S.)  333. 

2  In  re  Cooper,  22  N.  Y.  67;  Cohen  v.  Wright,  22  Cal.  293.     In  the 
case  of  In  re  Cooper,  supra,  Judge   Selden   said:      "Barristers  or 
counselors  at  law,  in  England,  were  never  appointed  by  the  courts 
at  Westminster,  but  were  called  to  the  bar  by  the  Inns  of  Court, 
which  were  voluntary  unincorporated  associations.     The  power  of 
the  court  to  appoint  attorneys  as  a  class  of  public  officers  was  con- 
ferred originally,  and  has  been  from  time  to  time  regulated  and 
controlled  in  England,  by  statute.     (4  Hen.  IV.  ch.  18;   3  James  I, 
ch.  7;   6  and  7  Viet.  ch.  73,  §  2082,  Viet.,  ch.  77,  §§  40-45.)   *  *  *  It 
is  plain,  therefore,  that  although  the  appointment  of  attorneys  has 
usually  been   entrusted   in   this   state   to   the   courts,   it   has  been 
nevertheless,  both  here  and  in  England,  uniformly  treated,  not  as 
a  necessary  or  inherent  part  of  their  judicial  power,  but  as  wholly 
subject  to  legislative  action.     I  take  no  notice  of  the  distinction  be- 
tween attorneys  and  counsel,  because  the  same  principles  in  respect 
to  the  modes  of  appointment  are  of  course  applicable  to  both." 

s  Ex  parte  Garland,  4  Wall.  378. 


ORIGIN  AND  QUALIFICATIONS  OF  THE  ADVOCATE          13 

The  "office"  to  which  an  attorney  is  thus  appointed, 
however,  is  not  an  office  in  the  sense  of  a  public  trust 
for  the  transaction  of  public  business  but  is  a  special 
license  or  franchise  to  exercise  certain  privileges 
which  otherwise  the  grantee  would  not  be  permitted 
to  exercise.1  The  advocate,  is,  therefore,  an  officer  sui 
generis  of  the  court  and  subject  to  the  rules  imposed 
by  the  court  in  regulation  of  the  practice  therein.2 

In  the  absence  of  constitutional  inhibitions  the  legis- 
lature usually  prescribes  the  general  rules  regulating 
the  admission  of  attorneys  while  to  the  courts  is  usu- 
ally committed  the  duty  to  examine  and  admit  the 
applicant  to  practice.  The  most  approved  method  of 
admission  is  on  examination  by  the  supreme  court,  or 
by  examiners  appointed  by  them  and  upon  proper 
recommendations  as  to  the  moral  character  of  the  ap- 
plicant. Upon  passing  his  examination  before  the 
court  he  must,  before  exercising  the  right  to  practice 
as  an  attorney  take  the  prescribed  oath  which  is  usual- 
ly to  the  effect  that  he  will  support  the  constitution  of 
the  state  and  of  the  United  States  and  faithfully  dis- 
charge the  duties  of  an  attorney.  Upon  taking  the 


1  Matter  of  Burchard,  27  Hun.  (N.  Y.)  429;  Ex  parte  Garland,  4 
Wall.   (U.  S.)   333.     Thus  where  an  attorney  practices  his  profes- 
sion and  serves  as  county  judge  he  is  not  holding  two  offices  in 
violation  of  the  constitution.     Bland  County  Judge  Case,  33  Gratt. 
(Va.)  443. 

2  Being  court  officers  and  not  public  officers  attorneys  cannot  be 
compelled  to  submit  to  the  taking  of  "test  oaths"  provided  for  pub- 
lic officers.     Matter  of  Attorneys  Oath,  20  Johns.  (N.  Y.)  492  (anti- 
duelling  oath) ;    Ingersoll  v.  Howard,  1  Heisk.    (Tenn.)   247    (anti- 
Ku  Klux  Klan  oath);  Ex  parte  Garland,  4  Wall.  (U.  S.)  333  (anti- 
Rebellion  oath). 


14 


AMERICAN     ADVOCACY. 


oath  and  signing  the  roll  of  attorneys  he  is  given  his 
license  to  engage  in  the  active  practice  of  the  law. 

§  8.  Who  May  Practice  Law  in  America— Women. 
— The  hostility  of  the  common  law  against  what  are 
now  known  as  "women's  rights"  is  probably  respon- 
sible for  the  fact  that  a  woman  was  not  eligible  to  be 
admitted  as  a  barrister  or  as  a  solicitor.1  Nor  does 
the  federal  constitution  offer  any  relief  against  such 
discrimination2  Aside  from  prejudice  arising  from 
the  ancient  customs  of  the  Anglo-Saxon  race  and  from 
the  peculiar  attitude  of  the  race,  especially  toward 
married  women  for  more  than  ten  centuries,  the  real 
underlying  and  fundamental  objection  to  women  as 
lawyers  has  been  her  total  incapacity,  after  marriage, 
to  perform  many  of  the  functions  of  a  person  sui  juris. 
And  this  reason  is  boldly  stated  in  many  of  the  cases 
which  support  the  rule  of  woman's  ineligibility.  While 
this  reason  would  seem  to  be  undoubtedly  sufficient  to 
exclude  a  married  woman  from  the  practice  of  law  it 
does  not  appear  sufficient  to  justify  the  exclusion  of 
unmarried  women,  nor  even  of  married  women  where 
the  disabilities  of  coverture  have  been  wholly  removed. 
But  stranger  still  appears  the  very  forced  construction 
that  is  given  by  the  courts  to  such  words  as  "person" 
and  "citizen"  as  not  including  "women"  within  the 
meaning  of  statutory  or  constitutional  provisions 
making  every  "citizen"  or  "person"  of  prescribed 


1  3  Blackstone  Com.  362;  Robinson's  Case,  131  Mass.  376,  41  Am. 
Rep.  241.     The  right  to  practice  law  was  at  common  law  and  under 
many  state  statutes  confined  to  adult  "male"  citizens  of  the  requi- 
site qualifications. 

2  In  re  Belva  Lockwood,  154  U.  S.  116;   Bradwell  v.  Illinois,  16 
Wall.  (U.  S.)  130. 


ORIGIN  AND  QUALIFICATIONS  OF  THE  ADVOCATE.         15 

qualifications  eligible  to  practice  law.1  In  Connecti- 
cut,2 the  court,  while  recognizing  the  weight  of  author- 
ity, reached  the  apparently  unassailable  conclusion 
that  the  term  "person"  seemed  to  be  broad  enough  to 
include  "women."  Many  states  now,  either  by  statute 
or  decision  of  the  courts,  have  admitted  women  to 
practice  law." 

While  women  are  rapidly  coming  into  full  rights 
with  men  as  citizens  it  does  not  follow  necessarily  that 
every  new  enfranchisement  is  a  decided  advantage, 
and  especially  is  this  true  of  the  practice  of  the  law. 
While  as  office  lawyers  and  solicitors  women  have  been 
largely  successful,  yet  as  advocates  they  have  yet  to 
show  any  marked  ability  or  success.  Her  peculiar 
temperament  probably  fits  a  woman  for  the  duty  of 
gathering  evidence  and  preparing  the  details  of  a. case. 
Her  intuition  will  suggest  means  of  securing  witnesses 
and  overcoming  difficulties.  But  the  clash  of  wit  and 
the  incidents  of  intense  provocation  arising  in  the  ac- 
tual trial  of  a  cause  are  usually  too  severe  for  the 
sensitively  nervous  organism  of  a  woman.  So  while 
woman's  success  in  almost  everv  oilier  line  of  endeav- 


i  Robinson's  Case.  131  Mass.  376;  In  re  Goodell,  39  Wis.  232; 
State  v.  Davidson,  92  Tenn.  531.  But  see  contra:  In  re  Hall,  50 
Conn.  131;  In  re  Leach,  134  Ind.  GC5;  In  re  Ricker,  (N.  H.  1890)  29 
Atl.  Rep.  559. 

-  In  re  Hall,  50  Conn.  131,  47  Am.  Kep.  625.  When  this  decision 
was  rendered  it  stood  alone  but  its  reasoning  was  so  convincing 
that  other  courts  quickly  followed  its  conclusions.  See  preceding 
note  for  citations. 

s  Consult  constitution  and  statutes  of  the  particular  state.  In  re 
Thomas,  16  Colo.  441;  In  re  Hall,  50  Conn.  131;  In  re  Leach,  134 
Ind.  665;  In  re  Kast's  Case,  14  Pa.  Co.  Ct.  Rep.  432;  In  re  Ricker, 
(N.  H.  1890)  29  Atl.  Rep.  559;  Goodell's  Application,  48  Wis.  693. 


16  AMERICAN     ADVOCACY. 

or,  including  the  profession  of  medicine,  has  hitherto 
been  quite  notable,  her  lack  of  success  as  an  advocate 
stands  out  in  vivid  contrast  as  one  very  important  ex- 
ception. Probably  the  future  has  for  us  some  great 
woman  advocate  who  will  yet  tread,  triumphantly,  the 
halls  of  justice  and  at  whose  remarkable  self-control, 
clear  logic  and  convincing  words  courts  and  juries  will 
be  won  and  the  rights  of  clients  vindicated;  but  that 
time  has  not  yet  arrived  and  until  some  such  brilliant 
example  appear  upon  the  horizon  we  are  not  justified 
in  holding  out  much  hope  for  success  to  the  young 
woman  starting  out  with  the  ambition  to  be  a  great 
advocate. 

§  9.  Who  May  Practice  Law  in  America— Corpo- 
rations.—If  there  be  any  profession  which  is  strictly, 
absolutely  and  exclusively  personal  that  profession  is 
the  law.  How  then  can  such,  purely  personal  activi- 
ties be  incorporated?  A  lawyer  cannot  delegate  his 
duties  to  some  one  else  and  yet  a  corporation  must 
necessarily  do  so. 

The  tendency  to  ' 'incorporate "  the  legal  profession 
is  of  only  recent  origin  and  is  only  one  of  the  many 
unhealthy  symptoms  of  unreasonable  exploitation  of 
the  corporate  idea.  This  tendency  has  met  with  such 
a  strong  resistance  in  the  profession  that  it  is  not 
likely  to  gain  even  a  foothold. 

The  incorporated  law  office  is  simply  a  cloak  for  un- 
ethical practices.  It  permits  laymen  to  practice  law, 
to  reap  the  emoluments  and  rewards  belonging  only 
to  those  specially  qualified  and  licensed  by  the  state. 
It  is  well  settled  that  a  layman  cannot  practice  law: 
neither  can  he  make  an  enforceable  contract  with  a 
member  of  the  bar  for  a  division  of  fees  for  business 


ORIGIN  AND  QUALIFICATIONS  OF  THE  ADVOCATE.        17 

he  may  be  able  to  direct  to  him.1  How  then  can  the 
corporation,  an  entity  that  does  not  have  even  the  ad- 
vantage of  personality  assume  to  do  that  which  even 
a  citizen  with  his  greater  natural  and  constitutional 
rights  cannot  do? 

The  courts  of  New  York  have  taken  a  most  resolute 
stand  against  the  encroachment  of  corporations  into 
fields  of  professional  activity.2  And  so  far  as  the  pro- 
fession of  law  is  concerned  the  New  York  Court  of 
Appeals  have  in  the  celebrated  case  of  In  the  Matter 
of  the  Co-operative  Law  Company,3  clearly  and  effec- 
tively barred  the  way  to  further  corporate  encroach- 
ments by  bluntly  enunciating  the  clear  and  unambigu- 
ous rule  that  no  corporation  could  practice  law  or 
indirectly  reap  the  rewards  of  the  labors  of  an  advo- 
cate. The  court  said  in  part:  "The  practice  of  law  is 
not  a  business  open  to  all,  but  a  personal  right,  limited 
to  a  few  persons  of  good  moral  character,  with  special 
qualifications  ascertained  and  certified  after  a  long 
course  of  study,  both  general  and  professional,  and  a 
thorough  examination  by  a  state  board  appointed  for 
the  purpose.  The  right  to  practice  law  is  in  the  nature 
of  a  franchise  from  the  state  conferred  only  for  merit. 
It  cannot  be  assigned  or  inherited,  but  must  be  earned 
by  hard  study  and  good  conduct.  It  is  attested  by  a 
certificate  of  the  Supreme  Court,  and  is  protected  by 
registration.  Xo  one  can  practice  law  unless  he  has 
taken  an  oath  of  office  and  has  become  an  officer  of  the 


1  Alpero  v.  Hunt,  86  Cal.  78,  24  Pac.  Rep.  84G,  21  Am.  St.  Rep.  17, 
19  L.  R.  A.  483;  Langdon  v.  Conlin  (Neb.)  93  N.  W.  Rep.  388. 

2  People  v.  Woodbury  Institute,  192  N.  Y.  454. 

s  198  N.  Y.  479,  92  N.  E.  15.     See,  also,  In  re  Associated  Lawyers 
Co.,  119  N.  Y.  S.  77. 
2 


Jg  AMERICAN     ADVOCACY. 

court,  subject  to  its  discipline,  liable  to  punishment  for 
contempt  in  violating  his  duties  as  such,  and  to  sus- 
pension or  removal.  It  is  not  a  lawful  business  except 
for  members  of  the  bar  who  have  complied  with  all 
the  conditions  required  by  statute  and  the  rules  of 
the  courts.  As  these  conditions  cannot  be  performed 
by  a  corporation,  it  follows  that  the  practice  of  law  is 
not  a  lawful  business  for  a  corporation  to  engage  in. 
As  it  cannot  practice  law  directly,  it  cannot  indirectly 
oy  employing  competent  lawyers  to  practice  for  it,  as 
that  would  be  an  evasion  which  the  law  will  not  tol- 
erate. ' ' 

The  court  then  goes  on  to  reason  that  the  relation 
of  attorney  and  client  involves  trust  and  confidence, 
and  that  "it  cannot  be  delegated  without  consent,  and 
cannot  exist  between  an  attorney  employed  by  a  cor- 
poration to  practice  law  for  it  and  a  client  of  the  cor- 
poration, for  he  would  be  subject  to  the  directions  of 
the  corporation,  and  not  to  the  directions  of  the  client. 
There  would  be  neither  contract  nor  privity  between 
him  and  the  client,  and  he  would  not  owe  even  the  duty 
of  counsel  to  the  actual  litigant.  The  corporation 
would  control  the  litigation,  the  money  earned  would 
belong  to  the  corporation,  and  the  attorney  would  be 
responsible  to  the  corporation  only.  His  master  would 
not  be  the  client,  but  the  corporation,  conducted,  it 
may  be,  wholly  by  laymen,  organized  simply  to  make 
money  and  not  to  aid  in  the  administration  of  justice, 
which  is  the  highest  function  of  an  attorney  and  coun- 
sellor at  law." 

§  10.  Who  May  Practice  Law  in  America— Trust 
Companies.— It  might  be  well  to  call  attention  at  this 
time  to  the  fact  that  corporations  known  as  "trust 
companies,"  have,  in  the  larger  cities  at  least,  largely 


ORIGIN  AND  QUALIFICATIONS  OF  THE  ADVOCATE.         1 9 

taken  the  place  of  the  English  solicitor  in  matters  of 
conveyancing,  and,  to  that  extent  have  made  it  harder 
for  the  young  practitioner  to  gain  a  foothold.  But, 
so  far  as  such  companies  perform  merely  the  minis- 
terial duties  of  a  solicitor  they  are  probably  more  at- 
tractive to  the  general  public  than  the  ordinary  law- 
yer by  reason  of  the  larger  security  which  they  offer 
against  fraud  and  mismanagement.  But  when  these 
huge  corporations  attempt  to  infringe  upon  the  law- 
yer's prerogatives  as  an  advocate,  they  are  violating 
holy  ground  with  unhallowed  feet.  A  soul-less  cor- 
poration, an  indefinable  entity,  an  impersonal,  unre- 
sponsive, unreality  incapable  of  taking  the  advocate's 
oath  of  office  and  unamenable  to  personal  correction 
or  professional  ostracism  for  the  violation  of  its  du- 
ties is  a  total  impossibility  as  an  advocate.  Within 
their  proper  sphere  as  trustees  and  conveyancers  and 
investigators  of  titles,  they  should  prove  a  public  ad- 
vantage, but  beyond  that  any  usurpation  of  the  power 
of  the  advocate  or  any  subterfuge  by  which  they  ex- 
pect to  reap  a  profit  from  the  litigation  of  causes  in 
courts  of  law  should  and  will  be  sternly  discounten- 
anced by  both  bench  and  bar,  as  being  derogatory  of 
the  dignity  of  courts  and  as  endangering  the  proper 
administration  of  justice. 

A  recent  statute  in  New  York  provides,  that  no 
corporation  "shall  be  organized  or  created  for  the 
purpose  of  conducting  any  branch  of  the  practice  of 
law  or  of  retaining  or  employing  an  attorney,  or  attor- 
neys to  furnish  legal  advice,  draw  legal  papers,  or 
perform  legal  services  of  any  kind  or  description, 
either  directly  for  the  person,  persons  or  corporation 
for  whose  use  such  services  are  rendered  or  for  the 
corporation  retaining  such  attorney  in  compliance 


20  AMERICAN     ADVOCACY. 

with  any  contract  of  employment  of  the  corporation 
or  of  the  attorney  made  by  the  corporation  with  any 
other  person,  persons  or  corporation."  This  New 
York  statute  has  been  effective  in  checking  the  highly 
improper  tendencies  of  certain  great  corporations, 
who  had  been  given  to  advertising  legal  services  so 
gratuitously  and  in  a  very  unethical  manner.  It  has 
always  appeared  as  an  unfathomable  problem  to  the 
writer  how  reputable  attorneys  could  sell  their  S;T 
vices  to  a  corporation  for  a  salary  and  not  become  be- 
smirched by  the  unethical  methods  of  the  corporation 
in  soliciting  business.  If  a  corporation  can  advertise 
their  superior  or  professional  skill  in  the  drawing  of 
wills,  etc.,  why  may  not  the  lawyers  whom  they  employ 
to  draw  these  wills  do  so?  And,  if  so,  why  may  not 
other  lawyers  share  this  privilege? 

There  is  no  doubt  but  that  trust  companies,  title 
guarantee  companies  and  other  corporations,  doing 
a  similar  business  are  of  great  assistance  in  their 
proper  sphere  of  activity  to  the  lawyer  and  there  is 
no  reason  why  they  should  not  exist  in  the  same  com- 
munity with  mutual  profit  to  each  other  and  to  the  ad- 
vantage of  the  community.  And  this  is  the  attitude 
taken  by  many  such  corporations  which  have  scru- 
pulously avoided  encroaching  upon  a  field  which  be- 
longs exclusively  to  the  licensed  practitioner  of  law 
and  which  they  cannot  enter  except  at  the  expense  of 
degrading  the  profession  of  the  law  and  impeding  the 
free  course  of  judicial  action. 

§  11.  Qualifications  of  an  American  Lawyer— Cit- 
izenship and  Residence.— In  an  important  decision  by 
the  New  York  Court  of  Appeals  it  is  said :  ' '  There 
can  be  no  doubt  that  citizenship  is  among  the  'other 
qualifications'  required  of  those  who  apply  for  an  ex- 


ORIGIN  AND  QUALIFICATIONS  OF  THE  ADVOCATE.         21 

animation  to  be  admitted  as  attorneys,  and  it  follows 
that  one  who  seeks  admission  upon  the  ground  that  he 
has  practiced  for  three  years  in  the  courts  of  another 
country  must  show  that  he  is  a  citizen  of  this  country 
at  the  time  of  making  his  application."1  This  would 
seem  to  be  an  undebatable  proposition.  For  no  one 
could  become  an  officer  of  an  American  court  of  jus- 
tice and  take  an  oath  to  support  the  American  con- 
stitution who  at  the  same  time  professes  to  owe  allegi- 
ance to  some  other  sovereignty.  Such  a  divided  al- 
legiance is  an  impossibility  and  could  not  be  tolerated 
in  one  exercising  the  great  powers  and  enjoying  the 
special  privileges  of  an  American  attorney  at  law. 
Whether  attorneys  licensed  to  practice  in  one  state 
may  practice  outside  of  the  state  of  their  residence 
depends  upon  the  further  inquiry  whether  the  non- 
resident attorney  wishes  merely  to  appear  in  certain 
causes  or  to  obtain  a  general  license.  Comity  permits 
the  former  but  not  the  latter.  Chief  Justice  Ryan  of 
Wisconsin,2  states  the  distinction  to  be  observed  here- 
in so  clearly  that  we  quote  his  observations : 

"The  general  practice  of  courts  of  record  in  the 
several  states,  is  to  permit  gentlemen  of  the  bar  in 
other  states  to  appear  as  counsel  on  the  trial  or  argu- 
ment of  causes.  No  license  to  practice  is  necessary 
for  that  purpose;  the  usual  practice  being  to  grant 
leave  ex  gratia,  for  the  occasion.  But  general  license 


i  Matter  of  O'Neill,  90  N.  Y.  587.  On  this  ground  a  Chinaman 
with  naturalization  papers  (such  papers  being  void)  was  refused 
license  as  an  attorney.  In  re  Hong  Yen  Chang,  84  Cal.  163.  See, 
also,  Matter  of  Yamashita,  30  Wash.  234,  94  Am.  St.  Rep.  860. 

*  In  the  Matter  of  Mosness,  39  Wis.  509,  20  Am.  Rep.  55. 


22  AMERICAN     ADVOCACY. 

to  practice  as  attorney  and  counselor  rests  upon  quite 
different  considerations.  .  .  .  The  office  of  attor- 
ney and  counselor  of  the  courts  is  one  of  great  official 
trust  and  responsibility  in  the  administration  of  jus- 
tice; one  liable  to  great  abuse;  and  has  always  been 
exercised,  in  all  courts  proceeding  according  to  the 
course  of  the  common  law,  subject  to  the  strict  over- 
sight and  summary  power  of  the  court.  It  would  be 
an  anomaly,  dangerous  to  the  safe  administration  of 
justice,  that  the  office  should  be  filled  by  uersons  re- 
siding beyond  the  jurisdiction  of  the  courts,  and  prac- 
tically not  subject  to  its  authority.  Our  courts  cai> 
not  have  a  nonresident  bar."1 

Some  courts  have  doubted  the  wisdom-  of  being  too 
liberal  in  indulging  the  right  of  nonresident  attorneys 
to  practice  law  because  of  the  embarrassments  likely 
to  follow,  as  for  instance  where  the  applicant  is  a 
woman,2  or  where  the  non-resident  attorney  takes  ad- 
vantage of  the  court's  indulgence  and  makes  it  diffi- 
cult for  resident  attorneys  to  serve  the  usual  notices 
upon  him.3.  It  is  well  for  the  non-resident  attornev  to 


1  See  also  to  same  effect:     Manning  v.  Railroad  Co.,  122  N.  Car. 
824;   Matter  of  Henry,  40  N.  Y.  560;   In  re  Admission  to  the  Bar, 
61  Neb.  58. 

2  In  re  Leonard,  12  Oreg.  93,  53  Am.  Rep.  323. 

3  Chappell  v.  Real  Estate  Co.,  89  Md.  260.     The  court  said:     "K 
a  nonresident  attorney  appear  alone,  and  there  is  any  difficulty  in 
serving  pleadings,  etc.,  in  accordance  with  our  practice  he  should 
be  required  to  make  some   arrangements,  either  with  a  resident 
attorney  or  in  some  way,  by  which  they  could  be  served  on  him 
without  causing  any  unnecessary  delay  or  trouble.     If  an  attorney 
who  is  still  a  resident  remains  out  of  the  state  indefinitely  to  avoid 
the  process  of  the  court,  he  cannot  occupy  any  better  position  than 
a  non-resident  attorney  would.     So,  whether  he  was  resident  or  a 
non-resident,  if  his  absence  in  any  way  obstructed  the  progress  of 


ORIGIN  AND  QUALIFICATIONS  OF  THE  ADVOCATE.         QO 

remember  that  at  the  best  his  right  to  appear  in  a 
foreign  jurisdiction  is  purely  an  indulgence  on  the 
part  of  the  local  courts  which  can  be  withdrawn  at 
any  time  at  the  pleasure  of  the  court.  For  reasons  al- 
ready indicated  therefore  it  is  generally  conceded  that 
the  better  practice  is  for  non-resident  attorneys  to  se- 
cure local  counsel  to  appear  with  them  and  to  repre- 
sent them  in  their  absence  in  all  proceedings  neces- 
sary to  be  taken  in  the  cause. 

In  many  states  by  statute  or  decision  non-resident 
attorneys  wishing  to  change  their  residence  may  be 
admitted  to  practice  in  the  courts  of  the  state  into 
which  they  have  located  without  examination  and  up- 
on presentation  of  certificate  showing  authority  to 
practice  in  the  courts  of  the  state  of  their  former  resi- 
dence.1 

§  12.  Qualifications  of  an  American  Lawyer— Good 
Moral  Character.— Under  Statute  4  Henry  IV,  Chap- 


the  case,  the  court  would  have  been  perfectly  justified  in  requiring 
the  defendant  to  be  represented  by  a  resident  attorney  who  was 
within  the  jurisdiction  of  the  court,  and  upon  her  refusal  to  do  so 
to  strike  out  the  appearance  of  Mr.  Chappell  and  treat  her  as  with- 
out counsel."  See  also:  Faughman  v.  Elizabeth,  58  N.  J.  L.  309. 

i  Consult  the  statutes  governing  the  admission  of  attorneys. 
Statutes  providing  for  special  admission  of  nonresidents  are  not  so 
liberallv  construed  by  the  courts  in  the  later  cases  as  under  the 
old  practice,  the  reason  being  that  when  a  state  begins  to  raise  its 
standard  of  admission  to  the  bar  it  is  jealous  of  any  opportunity 
that  may  be  given  to  evade  these  qualifications  by  the  applicant 
coming  in,  through  the  door  of  comity,  from  another  state.  In 
such  case  he  must  prove  in  addition  to  his  license  that  he  has  the 
necessary  qualifications.  In  re  Application  for  Admission  to  Prac- 
tice, 14  S.  Dak.  429.  See  also  In  re  Crum,  72  Minn.  401.  Such  a 
rule  does  not  require  the  court  to  admit  nonresident  attorneys, 
such  as  women,  who  could  not  have  been  admitted  originally  in  the 
state  of  their  adoption.  In  re  Leonard,  12  Oreg.  93,  53  Am.  Rep. 
323;  In  re  Maddox.  93  Md.  727. 


04  AMERICAN     ADVOCACY. 

ter  18,  it  was  provided  that  attorneys  should  be  ex- 
amined by  the  judges,  and  none  admitted  but  such  as 
were  virtuous,  learned,  and  sworn  to  do  their  duty. 
Subsequent  statutes  in  England  and  America  have 
emphasized  the  requirement  of  good  moral  charac- 
ter as  a  pre-requisite  to  the  right  to  enter  or  continue 
in  the  practice  of  law.  And  this  is  true  irrespective  of 
statute  since  the  court  by  granting  a  license  to  prac- 
tice law  impliedly  holds  out  to  the  public  that  the  ap- 
plicant is  fairly  competent  to  take  charge  of  the  im- 
portant personal  and  financial  interests  of  litigants 
that  may  be  committed  to  his  care  and  supervision. 
Considering  the  very  intimate  relation  and  position 
of  trust  which  an  attorney  occupies  toward  his  client 
it  would  indeed  be  a  great  misfortune  to  the  public  if 
courts  having  the  power  to  admit  attorneys  to  practice 
should  become  careless  or  even  too  indulgent  in  fail- 
ing to  require  the  strictest  proof  of  the  applicant's 
good  moral  character.  For  surely  the  applicant's 
ability  to  deal  honestly  with  the  court  and  his 
client  is  more  important  than  his  ability  to  pass  a  cred- 
itable examination  in  the  general  principles  of  law 
since  the  latter  defect  may  by  diligence  be  repaired 
while  the  former  is  usually  an  inherent  defect  of  char- 
acter that  is  apt  to  break  forth  at  any  time  to  the  mis- 
fortune of  confiding  clients  and  to  the  discredit  of  the 
profession.  For  this  reason,  therefore,  an  applicant 
may  be  refused  a  license,  or,  having  been  licensed,  may 
have  his  privileges  revoked  on  proof  that  he  has  been 
guilty  of  such  moral  delinquency  which  in  the  judg- 
ment of  the  court  would  unfit  him  for  transacting  the 
duties  of  so  delicate  and  confidential  relation  as  that 
of  attorney  to  client.1 

i  On  Application  for  Attorney's  License,  21  N.  J.  L.  345;  People 


ORIGIN  AND  QUALIFICATIONS  OF  THE  ADVOCATE.         25 

Referring  to  the  question  whether  an  attorney  may 
by  his  misconduct  forfeit  his  right  to  practice  after 
license  granted  we  are  not  unmindful  of  the  language 
of  the  Court  of  Appeals  of  New  York,1  that  "an  at- 
torney's professional  life  is  full  of  adversaries;  al- 
ways in  front  of  him  is  an  antagonist  sometimes  an- 
gry and  occasionally  bitter  and  venemous;"  and  that 
between  a  defeated  antagonist  on  the  one  hand  or  a 
disappointed  client  on  the  other  his  actions  are  fre- 
quently subject  to  misconstruction.  But,  on  the  other 
hand,  we  feel  constrained  to  agree  with  the  language 
of  the  Supreme  Court  of  Wisconsin,2  in  its  very  wise 
observation  that  "there  is  a  spirit  of  fairness  and  mag- 
nanimity among  members  of  the  bar,  not  surpassed  in 
any  other  profession"  and  that  "experience  and  ob- 
servation warrant  the  assertion  that  no  respectable 


v.  Smith,  200  111.  442;  State  v.  McClaugherty,  33  W.  Va.  250;  In  re 
O — ,  73  Wis.  COS;  In  re  Percy,  36  N.  Y.  651;  Ex  parte  Walls,  73 
Ind.  95.  "The  power  of  the  court  to  reject  the  application  on  the 
ground  of  moral  delinquency,  is  clear  and  unquestionable.  The 
power,  it  is  admitted,  is  one  of  great  delicacy,  and  should  be  exer- 
cised with  extreme  caution,  and  with  a  scrupulous  regard  for  the 
character  and  rights  of  the  applicant.  But  on  the  other  hand,  the 
standing  of  the  profession  must  not  be  disregarded,  nor  must  the 
court  shrink  from  the  performance  of  a  clear  duty,  however  em- 
barrassing." In  re  Application  for  Attorney's  License,  supra. 
Thus,  where  an  attorney  had  been  convicted  of  a  felony  and  then 
pardoned,  his  good  moral  character  is  not  restored  by  the  pardon 
and  his  name  may  for  that  reason  be  stricken  from  the  rolls. 
People  v.  George,  186  111.  122.  Moral  delinquency  for  which  he 
might  be  indicted  will  deprive  an  attorney  of  the  right  to  practice 
whether  he  has  been  indicted  or  not  or  even  if  indicted  and  the 
proceedings  have  been  quashed  on  technical  grounds.  State  v. 
Winton,  11  Oreg.  456.  * 

1  In  re  Eldridge,  82  N.  Y.  167. 

2  In  re  O— ,  73  Wis.  602,  618. 


26  AMERICAN     ADVOCACY. 

bar,  as  a  body,  would  tolerate  the  persecution  of  one 
of  its  members." 

Bearing  in  mind  the  considerations  mentioned  in 
the  preceding  paragraph  it  becomes  the  duty  of  every 
member  of  the  bar  to  report  to  the  proper  committee 
of  his  local  or  state  bar  association  every  serious  dere- 
liction from  professional  duties  on  the  part  of  any 
member  of  the  bar.  It  is  then  the  duty  of  every  griev- 
ance committee  of  every  bar  association  not  to  attempt 
to  "hush  up"  such  charges  without  investigation,  but 
to  give  to  them  the  closest  attention  and  the  most 
careful  consideration  and,  if  in  their  judgment  they 
believe  the  charges  to  be  true  and  the  attorney  by 
reason  of  such  misconduct  unfit  to  continue  a  member 
of  an  honorable  profession,  they  should  without  hesi- 
tation bring  the  proper  proceedings  to  have  the  delin- 
quent attorney  suspended  or  disbarred  from  practice. 
And  the  more  prominently  he  stands  in  the  profession 
the  more  readily  should  this  duty  be  undertaken. 

$  13.  Qualifications  of  an  American  Lawyer— In- 
tellectual Requirements  of  Admission.— With  the 
exception  of  the  well-known  "constitutional"  lawyer 
of  Indiana,1  most  states  require  more  than  good  moral 
character  and  the  necessary  citizenship  as  a  pre-requi- 
si+e  to  entering  upon  the  practice  of  the  law.  He  must 
also  have  acquired  in  most  states  a  thorough  knowl- 
edge of  legal  principles  and  in  not  a  few  states  he 

i  By  the  Constitution  of  Indiana,  Art.  7,  Sec.  21,  every  voter  of 
the  state,  of  good  moral  character  shall  be  entitled  to  practice.  This 
peculiar  constitutional  provision  prevents  the  courts  or  the  legis- 
lature from  requiring  any  intellectual  qualification  of  any  kind, 
and  opens  the  door  to  incompetency.  The  profession  in  Indiana 
have  made  earnest  and  praiseworthy  efforts  to  correct  this  unfor- 
tunate situation  but  the  great  difficulty  of  amending  the  Indiana 
Constitution  has  interposed  an  hitherto  insuperable  obstacle  to 
their  efforts. 


ORIGIN  AND  QUALIFICATIONS  OF  THE  ADVOCATE.         27 

must  also  have  provided  himself  with  a  good  academic 
education  as  a  proper  foundation  for  the  practice  of 
a  profession  which  makes  such  heavy  demands  on  the 
intellectual  resources  of  those  who  practice  it. 

The  tendency  to  raise  the  standard  of  intellectual 
qualification  on  the  part  of  a  candidate  for  admission 
to  the  bar  had  its  beginning  within  the  profession  it- 
self. Finally  public  opinion  has  come  to  see  that  the 
higher  the  standard,  the  better  the  lawyer,  and  has 
crystalized  this  tendency  into  legislation.  Good  law- 
yers, like  good  doctors,  are  a  blessing  to  any  coinmun 
ity,  while  poorly-equipped  practitioners  in  either  pro- 
fession, though  ever  so  sincere  and  honest,  are  a  pub- 
lic menace. 

In  1897,  the  Committee  on  Legal  Education  of  the 
American  Bar  Association,  adopted,  among  others, 
four  important  general  recommendations,  now  gen- 
erally accepted  as  the  highest  present  obtainable 
standard  by  which  to  properly  test  the  intellectual  fit- 
ness of  candidates  for  admission  to  the  bar.  First,  that 
every  candidate  "should  have  received  at  least  the 
equivalent  of  a  high  school  education."1  Second,  that 


1  Academic  Educational  Requirements  have  now  become  very  gen- 
eral, the  most  usual  requirement  being  that  the  candidate  for  ad- 
mission shall  have  had  the  benefit  of  a  full  three  or  four  years'  high 
school  course  of  academic  instruction  or  its  equivalent  before  be- 
ginning the  study  of  law.  This  is  now  the  requirement  in  nineteen 
states,  to-wit:  Colorado,  Connecticut,  Illinois,  Iowa,  Kansas,  Massa- 
chusetts, Michigan,  Minnesota,  Nebraska,  New  Jersey,  Ohio,  Okla- 
homa, Rhode  Island,  South  Carolina,  South  Dakota,  Vermont,  Wash- 
ington, West  Virginia  and  Wisconsin. 

In  a  few  states,  more  than  a  high  school  education  is  required, 
to-wit,  in  Delaware  applicant  must  have  diploma  of  college  confer- 
ring degree  of  Bachelor  of  Arts  or  Bachelor  of  Science;  in  New 
York  and  Pennsylvania  applicants  who  are  not  graduates  of  col- 
leges in  good  standing  must  stand  a  special  entrance  examination. 
In  the  Philippine  Islands  applicant  must  have  completed  a  course 


28  AMERICAN     ADVOCACY. 

the  requirements  for  admission  "  should  be  uniform 
throughout  the  state. ';1  ThirJ,  that  "a  candidate 
should  not  be  admitted  until  the  end  of  three  full  cal- 
endar years  of  law  study."  Fourth,  that  the  exam- 


of  studies  equivalent  to  that  provided  to  the  Government  Normal 
School. 

In  the  following  states  no  general  educational  qualification  of 
any  kind  is  required,  to-wit:  Alabama,  Alaska,  Arizona,  Arkansas, 
California,  District  of  Columbia,  Florida,  Georgia,  Hawaii,  Idaho, 
Indiana,  Kentucky,  Louisiana,  Maine,  Maryland,  Mississippi,  Mon- 
tana, Nevada,  New  Hampshire,  New  Mexico,  North  Carolina,  North 
Dakota,  Porto  Rico,  Tennessee,  Utah,  Virginia  and  Wyoming.  In 
Missouri  a  "grammar-school"  education  is  required  and  in  addi- 
tion thereto  a  knowledge  of  certain  specific  subjects  of  learning.  A 
high  school  certificate  or  college  diploma  constitutes  sufficient  evi- 
dence of  proper  equipment,  or  even  less  than  a  full  high  school  or 
college  course,  provided  the  work  student  has  already  completed  is 
sufficient  to  meet  the  requirements  of  the  board.  In  Texas  there 
are  no  requirements  except  that  the  board  of  examiners  may  reject 
any  applicant  who  shows  himself  "deficient"  in  general  education. 

1  That  the  examinations  of  candidates  for  admission  to  the  prac- 
tice of  law  should  be  uniform  throughout  the   state  is  now   well 
recognized  in  most  states  by  law,  or  by  rule  of  court  requiring  all 
applicants  to  take  their  examinations   before   some  board  of  law 
examiners  appointed  by  the  court  of  last  resort.     In  some  states, 
however,  the  ancient  practice  still  obtains  of  admitting  candidates 
before  the  local  tribunals  or  on  examination  by  the  local  bar,  to- 
wit,  in  Alabama,  Alaska,  Indiana,  Kentucky,  Mississippi  and  Nevada. 

2  Term  of  Legal  Study. — Most  states  now  require  a  definite  time 
to  be  spent  in  the  study  of  the  law.  The  most  general  requirement 
is  that  the  candidate  shall  spend  at  least  three  years  in  the  study 
of  law  either  in  a  law  school  or  law  office  or  partly  in  one  and  part- 
ly in  the  'other.     This  is  the  rule  in  the  following  states,  to-wit: 
Arizona,  Colorado,  Connecticut,  District  of  Columbia,  Illinois,  Iowa, 
Kansas,  Maine,  Massachusetts,  Michigan,  Minnesota,  Nebraska,  New 
Hampshire,  New  Jersey,  New  York,  North  Dakota,  Ohio,  Pennsyl- 
vania,  Philippine   Islands,  Rhode   Island,   South   Dakota,   Vermont, 
Wisconsin  and  Wyoming. 

In  the  following  states  two  years'  course  of  study  in  law  is  re- 


ORIGIN  AND  QUALIFICATIONS  OF  THE  ADVOCATE.        29 

ination  of  candidates  should  be  before  a  "  State  Board 
of  Law  Examiners,"  who  should  be  "appointed  by 
the  court  of  last  resort."1  The  statistics  furnished  in 
the  notes  appended  to  the  above  recommendations  will 
serve  to  show  how  generally  these  requirements  are 
being  adopted  and  how  pronounced  has  been  the  drift 
of  public  opinion  in  favor  of  the  efforts  of  the  profes- 
sion to  secure  for  the  people  a  more  competent  bar. 

quired,  to-wit:  Hawaii,  Louisiana,  Maryland,  Montana,  New  Mexi- 
co, North  Carolina,  South  Carolina,  Virginia,  Washington  and  West 
Virginia. 

In  many  states  there  is  a  tendency  to  require  that  a  part  of  a 
law  student's  time  of  preparation  shall  be  spent  in  a  law  office. 
This  tendency  is  due  to  the  gross  ignorance  usually  displayed  by 
law  school  graduates  in  matters  of  pleading  and  practice  during 
the  first  year  of  their  practice.  Many  lawyers  contend  that  the  law 
is  a  practical  as  well  as  a  learned  profession,  and  that  a  candidate 
for  admission  to  practice  needs  clinical  instruction  as  much  as  a 
doctor  does,  otherwise,  he  is  liable  to  endanger  the  interests  of  his 
first  clients  as  well  as  clog  the  wheels  of  justice  by  reason  of  his  un- 
familiarity  with  the  local  practice.  In  Delaware  the  applicant  must 
spend  the  three  whole  years  of  his  required  time  of  study  in  the  of- 
fice of  an  attorney  of  ten  years'  standing  before  he  can  be  permitted 
to  take  the  entrance  examination.  In  Nebraska  one  year  of  the  re- 
quired three  years'  course  of  legal  study  must  be  spent  in  a  law 
office.  In  New  Jersey  nine  months'  law  office  study  is  required  and 
in  Minnesota  and  Vermont  the  requirement  is  1'or  six  months'  study 
in  a  lawyer's  office. 

In  Oklahoma  and  Oregon  the  three  years'  course  of  legal  study 
must  be  certified  to  by  a  reputable  attorney. 

In  the  following  states  no  required  time  to  be  spent  in  the  study 
of  law  is  required,  to-wit:  Alabama,  Arkansas,  California,  Florida, 
Georgia,  Idaho,  Indiana,  Kentucky,  Mississippi,  Missouri,  Nevada, 
Porto  Rico,  Tennessee,  Texas  and  Utah. 

i  Boards  of  Law  Examiners  with  power  to  qualify  candidates  for 
admission  to  the  bar  are  appointed  by  the  court  of  last  resort  of 
the  following  states,  to-wit:  Alabama,  Arizona,  Arkansas,  Colo- 
rado, Connecticut,  Delaware,  District  of  Columbia,  Georgia,  Illinois, 
Iowa,  Kansas,  Maine,  Maryland,  Massachusetts,  Michigan,  Minne- 
sota, Missouri,  Nebraska,  New  Jersey,  New  Mexico,  New  York,  North 
Dakota,  Ohio,  Oklahoma,  Pennsylvania,  Philippine  Islands,  Porto 


30  AMERICAN     ADVOCACY. 

In  many  states  the  subjects  upon  which  a  student: 
must  be  examined  are  set  forth,  and  in  New  York  the 
Board  of  Examiners  are  required  to  examine  the  can- 
didates separately  on  procedure,  practice  and  evidence 
and  require  the  candidate  to  reach  as  high  a  general 
grade  in  this  examination  as  in  the  examination  on 
subjects  of  substantive  law.  This  change  was  made, 
says  Mr.  Franklin  M.  Danaher,1  a  member  of  the  New 
York  State  Board  of  Bar  Examiners,  because  the  dock- 
ets of  the  courts  were  being  clogged  by  the  defective 
and  clumsy  pleading  of  law  school  students.  The  re- 
quirement that  a  special  examination,  shall  be  passed 
on  the  subjects  of  pleading,  practice  and  evidence 
have  forced  many  law  school  graduates  to  secure  clerk- 
ships for  one  year  or  more  in  local  law  offices  and  has 
forced  the  law  schools  of  that  state  to  give  more  time 
to  these  subjects. 

Another  subject  to  which  increasing  importance  is 
attached  in  bar  examinations  is  that  of  legal  ethics. 
Since  the  adoption  of  the  Canons  of  Professional 
Ethics,  in  1908,  by  the  American  Bar  Association, 
many  states,  either  by  statute  or  by  rule  of  court,  re- 
quire a  strict  examination  to  test  the  candidate's  ac- 

Rico,  Rhode  Island,  South  Carolina,  Tennessee,  Utah,  Vermont, 
Virginia,  Washington,  Wisconsin  and  Wyoming. 

In  the  following  states  examinations  are  held  before  the  Supreme 
Court  itself,  to-wit:  Florida,  Hawaii,  Idaho,  Montana,  New  Hamp- 
shire, North  Carolina,  Oregon  and  South  Dakota. 

In  California  and  Texas,  the  examination  is  before  the  district 
courts  of  appeals  or  before  committee  of  examination  appointed  by 
such  district  court  of  appeals.  In  Louisiana  examination  is  con- 
ducted in  four  districts  by  four  separate  committees,  preliminary  to 
a  special  examination  by  the  Supreme  Court,  and  in  West  Virginia 
the  professors  of  law  of  the  University  of  West  Virginia  constitutes 
a  commission  to  examine  candidates  for  admission  to  the  bar. 

'  34  Am.  Bar  Ass'n.  Rep.,  784. 


ORIGIN  AND  QUALIFICATIONS  OP  THE  ADVOCATE.         31 

quaintance  with  the  provisions  of  these  Canons,  and 
thus  magnify  the  subject  of  legal  ethics  in  the  eyes  of 
the  young  candidate  for  admission  to  a  degree  that 
will  inspire  greater  respect  for  those  special  rules  that 
regulate  the  conduct  of  members  of  the  most  honor- 
able profession  in  the  world. 


CHAPTER  II. 

PREPARATION  FOR  TRIAL. 


14.  Common  Sense. 

15.  Knowledge  of  Human  Na- 

ture. 

16.  Consultation      and      the 

Writing  of  Legal  Opin- 
ions. 

17.  Listening    to    the    Client's 

Complaint. 

18.  Sifting  the  Client's  Story. 

19.  Arranging  and  Marshaling 

the  Evidence. 

20.  The  Theory  of  a  Case  and 

Its  Importance. 

21.  Discovering      and      Deter- 

mining  the    Legal   Out- 
lines. 


§  22.  Preparation    of    Pleadings. 

23.  Interviewing  and  Coaching 

Witnesses. 

24.  Interviewing     the     Adver- 

sary     Party — Interroga- 
tories. 

25.  What    to    do    With    Weak 

or  Dangerous  Points  in 
the  Line  of  Battle. 

26.  "Reading    Up"     the     Law 

of  the  Case. 

27.  Preparations     of     Address 

to  the  Jury. 

28.  The  Three  Cardinal  Requi- 

sites. 


§  14.  Common  Sense.— We  begin  with  a  proposition, 
which  cannot  be  seriously  disputed,  namely,  that 
Common  Sense  is  the  foundation  of  good  advocacy. 
A  man  may  be  brilliant  as  an  advocate,  and  even  suc- 
cessful, but  the  mere  dazzle  of  his  splendor  will  be 
no  light  to  lighten  the  path  of  the  inexperienced.  On 
the  contrary,  it  may  mislead  him  by  its  fascinations, 
and  conduct  him  into  dangerous  errors.  A  brilliant 
advocate  may  be  bold  and  win  by  it;  or,  if  he  fail, 
may  cover  his  defeat  by  masterly  and  striking  efforts, 
whereas  an  ordinary  person,  failing  in  his  attempted 


PREPARATION  FOR  TRIAL.  33 

imitation,  would  present  but  a  clumsy  appearance  in 
his  overthrow.  Common  Sense,  invaluable  in  all  hu- 
man pursuits,  is  of  the  utmost  importance  in  advo- 
cacy. It  is  the  one  quality  without  which  all  others 
are  useless,  and  with  which  almost  all  others  are  su- 
perfluous. 

There  is  nothing  about  the  trial  of  a  case  so  unusual 
or  uncertain  as  to  frighten  the  young  advocate.  It  is 
a  most  prosaic  proceeding  in  the  great  majority  of 
cases,  and  its  sole  object  is  to  find  out  the  truth  in 
a  certain  stated  transaction.  The  young  lawyer  must, 
therefore,  dismiss  all  the  romantic  dreams  with  which 
his  imagination  has  encircled  the  dome  of  the  temple 
of  justice,  and  enter  its  gates  as  he  would  the  pre- 
cincts of  a  bank  or  counting  house,  with  the  deter- 
mination mereh-  to  transact  the  business  of  his  client 
in  as  short  a  time  and  with  as  little  of  the  spectacular 
as  possible.  Indeed,  the  young  attorney  will  find  that, 
contrary  to  his  expectations,  a  little  common  sense 
and  a  large  amount  of  self-confidence  will  carry  him 
further  in  the  trial  of  a  case  than  the  great  mass  of 
legal  principles  with  which  he  has  crammed  his  head. 
True,  this  mass  of  learning  will  be  of  great  advan- 
tage to  him  at  exceptional  moments,  and  on  appeal, 
but  all  the  little  confusing  details  of  the  trial  of  a 
case  are  not  to  be  settled  by  a  recourse  upon  the  au- 
thorities, but  by  the  application  of  a  little  common 
sense  and  sound  business  judgment. 

§  15.  Knowledge  of  Human  Nature.— An  advocate  is 
always  dealing  with  human  nature.  It  is  not  only 
the  instrument  he  works  with,  it  is  also  the  field  of 
his  labors.  Whether  he  measures  his  opponent,  or 
estimates  the  qualities  of  the  jury,  or  probes  the  mind 
and  character  of  the  witness,  a  knowledge  of  human 
3 


34  AMERICAN     ADVOCACY. 

nature  or  human  character  is  the  key  to  success.  To 
treat  mankind  as  mere  machines,  as  some  advocates 
occasionally  do,  is  to  show  an  utter  absence  of  that 
knowledge  which  is  often  the  last  acquirement  but 
always  the  first  necessity  of  an  advocate.  The  worst 
thing  a  man  can  do  is  to  treat  the  jury  as  though  they 
were  so  many  fools.  And  this  mode  of  treatment  is 
'by  no  means  exceptional.  Young  advocates,  fresh 
from  the  glories  of  their  debating  societies,  are  prone 
to  undervalue  the  commoner  knowledge  of  business 
men.  It  is  a  mistake  of  youth.  Whatever  may  be  their 
mental  capacity,  whether  the  advocate  has  a  stupid  or 
a  wise  jury,  to  treat  them  as  unworthy  his  respect  is 
probably  to  lose  his  case,  and  to  discover  himself  a 
man  of  very  little  wisdom.  There  are  almost  sure  to 
be  one  or  two  shrewd  men  on  the  commonest  of  com- 
mon juries,  and  inasmuch  as  they  will  lead  the  rest, 
the  advocate  must  beware  of  making  them  his  ene- 
mies, as  he  undoubtedly  will,  if  he  let  them  suppose, 
by  word  or  manner,  that  he  considers  them  of  little 
understanding.  This  applies  also  to  parties  and  wit- 
nesses. 

The  advocate,  therefore,  should  closely  study  hu- 
man nature  and  endeavor  to  adapt  himself  to  all  con- 
ditions of  men,  so  as  always  to  be  attractive  and 
winning,  never  repellant. 

§  16.  Consultation  and  the  Writing  of  Legal  Opin- 
ions.—The  giving  of  legal  advice  is  one  of  the  most 
important  and  lucrative  features  of  the  advocate's 
office  work.  Sometimes  this  advice  is  oral ;  more  often 
it  is  in  the  form  of  a  written  brief.  An  attorney 
should  never  permit  himself  to  deliver  an  opinion  off- 
hand on  any  point  of  law  about  which  he  has  any 
doubt.  The  best  practice  is  to  request  the  client  to  re- 


PREPARATION  FOR  TRIAL.  35 

turn  again  when  the  attorney  will  be  prepared  to  fur- 
nish him  with  an  opinion  based  on  a  thorough  investi- 
gation of  the  authorities.  Often  young  lawyers  look 
upon  it  as  a  confession  of  weakness  not  to  be  able  to 
decide  upon  a  given  legal  proposition  the  very  minute 
it  is  stated  by  the  client.  On  the  contrary  he  will 
often  find  clients  who  will  politely  request  him  to  look 
the  question  up  and  be  sure  about  it.  No  lawyer  can 
possibly  carry  all  the  law  in  his  mind,  and  most  cli- 
ents are  aware  of  this  fact,  so  that  an  immediate  ex- 
pression of  opinion  on  the  part  of  the  attorney  not 
only  cheapens  his  advice,  but  insinuates  a  suspicion 
into  the  mind  of  the  client  that  the  attorney  is  trying 
to  shine  in  a  false  light.  It  also  makes  a  client  feel, 
especially  where  such  impromptu  advice  has  to  be  re- 
called on  more  mature  reflection,  that  the  attorney  is 
a  man  that  acts  impulsively  and  not  considerately,  and 
therefore,  not  a  safe  and  absolutely  reliable  counsel. 

§  17.  Listening  to  the  Client's  Complaint.— The  ear- 
liest intimation  the  practitioner  will  have  of  his  cause 
will  usually  come  from  his  client,  who  seeks  his  ad- 
vice either  as  to  the  advisability  of  bringing  suit  or  of 
maintaining  a  defense.  Even  the  most  uncouth  and 
unlettered  men  have  the  faculty  of  imparting  their 
version  of  a  matter  more  clearly  in  their  own  rambling 
way  than  by  answering  an  attorney's  questions.  They 
have  turned  it  over  repeatedly  in  their  minds,  and  will 
tell  most,  if  not  all,  of  the  salient  facts,  if  permitted 
to  take  their  own  time  and  their  own  method.  Hence, 
the  lawyer  must  be  prepared  to  sit,  it  may  be  for 
hours,  listening  carefully  and  with  sympathy  to  a  vol- 
uble account  (sometimes  interspersed  with  impreca- 
tions or  with  tears)  and  out  of  the  mass  of  chaff  he 
must  extract  the  grain.  When  the  client  has  told  all 


3(5  AMERICAN     ADVOCACY. 

he  can  remember  and  has  fairly  emptied  himself  of 
his  case,  the  advocate  may  then  catechise  him,  sifting 
his  statements  and  cross-examining  him  as  vigorously 
as  though  he  were  his  antagonist.  Thus,  he  may  of- 
ten discover  important  facts  which  he  has  either  neg- 
lected to  mention  or  has  intentionally  concealed. 

§  18.  Sifting  the  Client's  Story.— The  purposes  of 
this  severe  examination  are,  first,  to  ascertain  if  there 
be  a  probability,  upon  legal  grounds,  that  a  recovery 
can  be  had  if  suit  is  brought;  and  second,  to  determine 
whether  it  is  advisable,  under  all  the  circumstances, 
to  institute  legal  proceedings,  assuming  the  suit  would 
be  successful.  To  attain  the  first  purpose  the  attorney 
will  have  recourse  to  his  store  of  technical  knowledge, 
and  if  he  be  at  all  in  doubt  he  will  frankly  state  that 
he  needs  time  for  considering  the  question  and  inves- 
tigating the  authorities.  In  determining  the  advis- 
ability of  bringing  suit,  as  a  matter  of  policy  he  will 
seek  with  all  proper  regard  for  his  client's  feeling  to 
find  out  from  him  the  situation  of  his  family  or  busi- 
ness affairs,  and  whether  the  institution  of  an  action 
would  in  any  way  jeopardize  his  more  important  in- 
terests'. He  will  particularly  inquire  respecting  the 
solvency  of  the  party  against  whom  suit  is  to  be 
brought,  that  he  may  not  waste  his  own  and  his  client's 
energies  in  attacking  a  man  of  straw.  If  the  client  be 
sued  and  consult  his  attorney  as  to  his  defense,  the 
same  minute  examination  will  be  necessary,  for  it  is 
a  common  trait  among  litigants  to  believe  they  can 
prove  '*Hxeir  case  without  difficulty,  but  that  their  ad- 
versary will  be  hampered  by  a  failure  of  evidence  at 
every  step.  The  client  will  often  undertake  to  provide 
ample  proof  of  each  fact  material  to  his  case,  but  the 
advocate  is  never  to  rely  upon  that  assurance.  This 


PREPARATION  FOR  TRIAL.  37 

sifting  process  has  a  further  value;  not  infrequently 
the  client  has  reasoned  out  a  plan  of  action  or  a  series 
of  arguments  which  will  prove  of  real  value  to  his 
counsel  in  fighting  the  battle.  But  the  counselor  will 
never  forget  that  he  alone  is  the  comniander-in-chief, 
and  though  he  stand  willing  to  avail  himself  of  wise 
and  practical  suggestions  or  sound  argument  offered 
by  his  client,  he  never  allows  the  legal  opinions  of  a 
layman  to  override  and  direct  the  actions  of  a  profes- 
sional adviser. 

§  19.  Arranging  and  Marshalling  the  Evidence  Be- 
fore Trial.— After  the  witnesses  have  been  thus  sub- 
jected to  examination  and  study,  it  will  be  advisable 
to  write  down  on  separate  sheets  of  paper  what  each 
one  will  testify  to,  and  indorse  this  abstract  with  the 
name  of  the  case  and  of  the  witness.  These  are  kept 
together,  and  will  prove  of  inestimable  value  at  every 
stage  of  the  litigation;  for  it  frequently  happens, 
after  a  lawyer  has  filled  his  mind  with  his  case,  there 
is  a  postponement  until  some  remote  time,  and  in  the 
interval  his  memory  loses  its  first  vivid  impressions 
of  nice  'points  and  slight  incidents. 

Where  the  advocate's  evidence  consists  of  docu- 
ments, it  is  of  prime  importance  that  he  see  the  docu- 
ment itself,  and  not  trust  to  another's  recollection  of 
its  contents.  His  personal  inspection  may  reveal  eras- 
ures and  alterations  which  must  be  explained,  fatal 
ambiguities  or  ruinous  clauses  and  conditions.  It  will 
greatly  assist  him  in  mastering  the  facts  to  visit  the 
place  in  which  occurred  the  accident,  crime  or  transac- 
tion in  question.  The  judge  and  jury  will  be  ignor- 
ant of  the  situation,  and  his  own  observation  will  en- 
able him  to  be  far  clearer  and  more  accurate  in  de- 
picting the  scene  than  will  the  study  of  diagrams  and 
the  reports  of  witnesses. 


38  AMERICAN     ADVOCACY. 

After  the  advocate  has  marshalled  all  the  facts 
which  he  has  gleaned  from  men,  documents  and  local- 
ities, he  will  crystallize  his  information  by  reducing 
the  whole  to  writing  in  narrative  form,  so  that  anyone, 
by  reading  his  abstract,  may  derive  a  distinct  and  ade- 
quate idea  of  the  case. 

§  20.  The  Theory  of  a  Case  and  Its  Importance.— 
The  theory  of  a  case  is  that  particular  line  of  reason- 
ing of  either  party  to  a  suit,  which  aims  to  bring  to- 
gether certain  facts  of  the  case  in  a  certain  order  or 
logical  sequence  and  interrelate  them  in  such  a  manner 
as  to  produce  in  the  mind  one  definite  result  or  con- 
clusion, which  the  advocate  believes  entitles  him  to 
the  judgment  or  decree  of  the  court  under  the  appli- 
cation to  such  result  or  conclusion  of  certain  well 
known  principles  of  law.1  The  theory  thus  construct- 
ed lies  at  the  foundation  of  the  advocate's  case.  His 
pleading  outlines  his  theory;  his  evidence  fills  it  in 
and  gives  it  shape;  and  the  principles  of  law  which 
he  cites  must  support  the  result  which  his  theory  hag 
produced.  • 

The  law  insists  that  every  case  proceed  upon  some 
definite  theory.  Although,  under  our  modern  codes, 
pleading  has  been  made  so  simple  a  matter  as  almost 
to  encourage  negligence,  nevertheless  courts  draw  the 
line  at  haphazard  and  speculative  litigation.  A  party 
cannot  make  indefinite  and  uncertain  allegations  in 
his  pleadings  and  then  enter  a  trial  aimlessly,  permit- 
ting the  evidence  to  carry  him  where  it  will,  and  finally 
insist  on  one  or  the  other  of  the  different  phases  of 

i  De  Quincey  says:  "A  theory  takes  a  multitude  of  facts,  all 
disjointed,  or,  at  most,  suspected  of  some  inter-dependency;  theae 
it  takes  and  places  under  strict  laws  of  relation  to  each  other." 


PREPARATION  FOR  TRIAL.  39 

his  case  which  seem  to  him  at  that  time  most  desir- 
able. 

Moreover,  while  a  failure  to  determine  a  theory  at 
all  or  a  mistake  in  selecting  a  proper  theory  is  not 
necessarily  fatal,  it  always  injures  a  case.  Sometimes 
a  trial  court  will  assist  the  young  advocate,  who  comes 
into  court  without  any  definite  theory  as  to  his  case, 
to  find  one,  by  inquiring,  upon  objection  of  the  other 
party  to  the  introduction  of  certain  evidence,  what 
the  advocate  is  ' '  trying  to  prove  by  that  witness, ' '  and 
then  as  to  "what  bearing  that  evidence  will  have  upon 
the  case."  In  his  answer  to  these  questions,  an  at- 
torney who  comes  into  court  without  a  well  construct- 
ed theory  of  his  case,  is  forced  to  declare  one  on  the 
spur  of  the  moment  or  seriously  affect  his  chances  of 
a  verdict.1 

More  important  in  some  respects,  probably,  than 
the  construction  of  a  theory,  is  the  determination  of 
an  accurate  hypothesis  on  which  to  construct  the  the- 
ory. Uberweg  defines  an  hypothesis  as  "the  prelimi- 
nary admission  of  an  uncertain  premise  which  states 

1  "The  same  case,"  says  Mr.  Elliott,  "may  be  gained  on  a  sound 
theory  that  would  be  lost  on  a  bad  one.  One  advocate  may  take  the 
same  facts  and  secure  a  verdict,  while  another  will  be  unable  to 
frame  a  theory  that  can  be  successfully  maintained.  A  case  la 
given  by  Mr.  Bishop  in  which  goods  were  brought  into  this  country 
in  violation  of  our  revenue  laws;  they  passed  the  custom-house 
officers  under  a  permit  genuine  in  form  and  signature,  but  procured 
by  bribery.  Counsel  to  whom  the  revenue  officers  first  applied  for 
advice  searched  the  statutes,  and,  finding  no  provision  applying 
to  the  particular  case,  advised  that  no  prosecution  could  be  main- 
tained. Another  counsel  took  up  the  case  and  secured  a  verdict. 
His  theory  was  that  the  case  was  the  ordinary  one  of  smuggling, 
and  so  he  put  it  to  trial.  When  the  permit  was  offered  it  went  in 
evidence,  but  was  assailed  and  overthrown  on  the  ground  of  fraud. 
The  mistake  of  the  counsel  first  consulted  was  in  framing  the  the- 
ory of  the  case." — Elliott's  Work  of  the  Advocate,  p.  76. 


40  AMERICAN     ADVOCACY. 

what  is  held  to  be  a  cause  in  order  to  test  it  by  conse- 
quences." The  hypothesis,  therefore,  precedes  the 
theory,  and  upon  a  proper  hypothesis  depends  the 
success  of  the  theory. 

The  first  thing,  therefore,  which  an  advocate  is  to 
do,  after  having  secured  a  full  statement  of  the  facts 
from  his  client,  is  to  fix  upon  a  proper  hypothesis.  Re- 
volving in  his  mind  the  various  suggested  explanations 
of  the  occurrences  related  to  him  by  his  client, 
the  advocate  should  finally  determine  on  the  one 
which  fits  in  most  accurately  with  all  the  facts  in 
the  case,  and  on  that  hypothesis  or  explanation  con- 
struct his  theory,  weaving  into  the  fabric  all  the  evi- 
dence which  goes  to  sustain  the  hypothesis  thus  select- 
ed, and  ignoring  or  discarding,  for  his  own  purpose, 
at  least,  all  facts  in  the  case  which  would  seem  to  sup- 
port a  different  hypothesis.1  For  these  latter  phases 

i  Thus,  take  an  actual  case:  A  client  came  to  his  attorney 
with  this  statement  ot"  facts:  A,  the  client's  wite,  carried  certain 
insurance  on  her  life,  payable  to  her  husband.  She  had  several 
small  children  whom  she  loved.  On  July  1st,  1904,  she  contracted 
a  fatal  illness,  and,  on  the  22d  of  the  same  month,  she 
died.  She  had  often  said,  during  her  illness,  that  she 
wanted  the  money  due  on  the  policy  of  insurance  to  go  to  her  chil- 
dren. After  her  death  it  appeared  that,  on  the  18th  of  July,  she 
had  signed  an  application  for  a  change  of  beneficiary,  giving  the 
proceeds  of  the  policy  to  her  Bister,  her  only  living  relative,  in- 
stead of  to  her  husband.  There  was  evidence  that  the  wife  and 
husband,  as  well  as  the  wife  and  sister,  were  not  on  friendly  terms. 
A  witness,  whose  name  was  subscribed  to  the  application  for 
change  of  beneficiary,  said  she  was  not  present  at  the  signing,  but 
signed  the  applicatiqn  at  the  request  of  the  sister.  The  sister  was 
in  the  sick  room  almost  constantly,  but  seldom  alone.  The  physi- 
cian who  attended  the  wife  said  that,  on  the  18th  of  July,  the  wife 
was  so  delirious  and  weak  as  to  be  utterly  incapable  of  signing 
her  name.  The  signature  on  the  application,  however,  resembled 
very  closely  that  of  the*  wife,  although  the  application  is  filled  in 
by  another  hand.  The  sister  proved  up  the  death  and  was  paid 
the  face  of  the  policy.  These  were  all  the  facts.  It  is  evident 


PREPARATION  FOR  TRIAL.  4J 

of  the  evidence  the  adversary  will  undoubtedly  find 
convenient  uses  in  establishing  an  alibi  or  other  parts 
of  his  defense. 

§  21.  Discovering  and  Determining  the  Legal  Out- 
lines.—The  advocate  will  now  address  himself  to  the 
law  applicable  to  the  facts  of  his  case.  Much  time 
will  be  saved  by  constructing  a  written  outline  of  legal 
propositions  involved  and  considering  these  strictly 
in  order.  The  advocate's  desire  will  be  to  select  one 
branch  of  the  case  which  appears  peculiarly  attrac- 
tive, and  make  extensive  preparation  upon  it,  leaving 
his  forces  dangerously  exposed  at  another  and  less  in- 
teresting point.  The  only  safe  plan  is  that  pursued 
by  a  general  who  arranges  his  hosts  for  battle;  each 

that  the  attorney  in  this  case  was  compelled  to  look  around  to 
discover  an  hypothesis  on  which  to  reconcile  all  these  facts  before 
he  could  proceed  a  single  step.  What  one  shall  he  take?  First, 
the  wife  may  have  signed  the  application  in  a  fit  of  jealousy  or 
anger  at  her  husband.  Second,  she  may  have  signed  the  applica- 
tion because  of  the  undue  influence  of  her  sister.  Third,  she  may 
have  signed  the  application  in  blank,  requesting  that  it  be  filled 
in  making  the  insurance  payable  to  her  sister  as  trustee  for  her 
children.  Fourth,  she  may  never  have  signed  it  at  all,  and  some 
one  has  committed  a  forgery.  Fifth,  if  the  latter  hypothesis  is 
correct,  the  mind  at  once  fixes  upon  the  sister  as  the  one  having 
sufficient  interest  to  commit  the  crime.  To  the  thoughtful  student 
various  facts  (more  or  less  numerous)  can  be  found  that  will  co- 
incide with  each  hypothesis.  The  attorney  for  the  husband  chose 
the  last  two  hypotheses  as  the  basis  of  his  cause  of  action.  The 
Insurance  company,  in  defense,  adopted  the  first  one  suggested. 
Each  party  then  searched  for  and  appropriated  all  facts  in  the 
case  that  supported  their  respective  hypotheses,  and  with  these  ele 
ments  constructed  their  respective  theories. 

Suppose  that,  in  addition  to  this  civil  action,  an  indictment  is 
found  against  the  sister  for  forgery.  The  state,  of  course,  finds  its 
hypotheses  in  the  fourth  and  fifth  suggestions.  The  sister,  in  de- 
fense, might  adopt  either  one  or  all  of  the  others  as  a  basis  of  de- 
fense. 


49  AMERICAN     ADVOCACY. 

part  of  the  line  must  be  well  defended,  there  must  be 
no  gaps.  Another  seductive  temptation  will  be  to  in- 
vestigate the  law  on  some  subject  very  similar  to  the 
one  the  advocate  has  in  hand,  yet  not  precisely  his 
question.  The  advocate  must  restrain, the  mind  and 
command  it  to  investigate  the  very  point  which  he  has 
noted  in  his  outline.1 

But  perhaps  the  advocate's  powers  are  not  accus- 
tomed to  this  kind  of  thinking;  how  is  he  to  know  what 
points  of  law  to  investigate  and  what  is  applicable  to 
his  case?  Two  species  of  preparation  every  lawyer 
expects  to  make:  a  general  preparation  resulting 
from  his  investigation  during  student  days,  and  from 
those  minute  particles  of  law  which  he  has  since  learn- 
ed, line  upon  line,  precept  upon  precept,  here  a  little 
and  there  a  little,  out  of  his  reading,  his  conversation 
with  lawyers,  attendance  at  court,  and  from  actual 
experience  in  practice.  Besides  this  stock  of  general 
working  knowledge,  which  should  grow  larger  and 
richer  with  every  passing  year,  is  the  special  prepara- 
tion required  for  each  case.  None  but  the  shallowest 
of  lawyers  will  ever  trust  to  his  general  knowledge 
when  a  legal  battle  is  to  be  fought.  Hence,  to  discov- 
er the  law  points  involved  in  his  suit,  the  advocate 


1  For  example,  if  the  advocate  is  inquiring  whether  a  railroad 
company  which  has  received  goods  for  carriage  from  one  who  has 
stolen  them,  may  detain  them  from  the  rightful  owner  until  the 
transportation  charges  are  paid,  the  mind  by  a  natural  perversity 
will  tend  to  discover  the  law  governing  livery  stable  keepers,  ware- 
housemen, innkeepers  and  mechanics  who  detain  stolen  property 
under  similar  circumstances,  until  their  charges  are  collected. 
These  similar  cases  may  subsequently  be  valuable  by  way  of  anal- 
ogy, but  the  advocate's  business  now  is  to  learn  what  rule  governs 
railroad  companies,  and  he  is  to  bend  his  mind  to  that  one  task 
with  a  grip  of  steel. 


PREPARATION  FOR  TRIAL.  43 

should  summon,  the  results  of  his  general  preparation ; 
and  in  the  light  of  all  he  knows,  see  how  the  facts  im- 
press him  as  a  lawyer,  not  as  a  philanthropist,  a  poli- 
tician or  a  citizen.  Where  do  the  strong  propositions 
lie?  Where  are  the  weaker?  \What  is  the  natural,  the 
rational  and  common-sense  mode  of  looking  at  the 
case?  What  legal  propositions  are  instantly  suggest- 
ed by  the  facts,  as  applicable  to  the  cause?  What  are 
the  peculiar  features  of  the  case  which  especially  ap- 
peal to  the  legal  sense  of  justice?  Do  these  special 
features  lead  the  mind  toward  further  propositions? 
Are  these  propositions  sound  or  fallacious?  Which  of 
them  will  appeal  most  strongly  to  a  court?  By  thus 
catechising  himself  the  advocate's  faculties  will  be 
roused  into  action,  and  points  and  arguments  will  come 
trooping  to  his  command. 

§  22.  Preparation  of  Pleadings.— A  subject  of  the 
importance  of  this  would  seem  to  demand  a  separate 
chapter.  But  it  is  hardly  necessary  for  our  purpose, 
especially  in  view  of  the  large  number  of  text  books 
on  the  subject  of  pleading,  both  at  the  common  law 
and  under  the  code. 

The  attorney  who  is  well  versed  in  the  law  of  his 
case  and  familiar  with  the  general  rules  of  pleading, 
will  usually  find  little  difficulty  in  preparing  his  plead- 
ings. But  to  the  young  attorney  the  most  profitable, 
possibly  of  all  studies,  after  leaving  the  law  school,  is 
that  of  the  Code  of  Procedure  and  the  Form  Books 
of  his  own  state.  Most  of  the  technicalities  of  plead- 
ing and  practice  will  be  mastered  in  this  manner.1 

i  During  the  first  years  of  a  lawyer's  practice,  when  time  is  not 
so  valuable  an  asset  as  it  is  later  in. his  practice,  he  will  make  a 
most  profitable  investment  if  he  undertake  to  make  a  study  of  the 
files  of  old  cases  stored  away  among  the  archives  of  the  clerk's  of- 


44  AMERICAN     ADVOCACY. 

So  far  as  pleading  affects  advocacy,  that  is,  the  in- 
fluence it  may  exert,  beyond  the  mere  presentation 
of  the  cause  of  action,  in  winning  a  verdict,  three  rules 
rules  might  be  remembered  with  profit.  First:  The 
statement  of  facts  must  be  clear  and  succinct.  Noth- 
ing makes  such  an  impression  on  the  jury,  not  even  the 
opening  statement  of  counsel  as  a  well  worded  peti- 
tion, one  not  so  clouded  by  legal  phraseology  and 
clumsily  stated  facts  as  to  make  the  effort  of  the  jury 
to  follow  it  a  matter  of  too  much  exertion,  but  one 
which  interests  the  jury  from  the  start,  and  carries 
them  along  without  any  apparent  effort  on  their  part 
until,  at  the  close,  they  see  the  advocate's  case,  from 
his  standpoint,  as  clearly  as  he  does,  and  in  a  measure 
partake  of  his  enthusiasm.  Second:  Just  enough 
facts  should  be  stated  to  constitute  a  cause  of  action 
and  make  the  whole  transaction  as  clear  as  possible 
from  the  advocate's  point  of  view.  It  is  very  bad 
practice  to  introduce  all  or  even  a  great  part  of  the 
evidence  in  the  petition,  not  merely  because  it  is  more 
dangerous  from  the  fact  that  it  makes  the  proof  more 
difficult,  and  offers  the  adversary  more  opportunities 
for  preparation,  objection  and  delay,  but  because  of 
its  effect  upon  the  jury.  A  jury  should  not  be  told  the 
case  in  its  most  favorable  light  in  the  petition ;  other- 
wise, a  slip  in  the  evidence  may  disappoint  the  first 
favorable  impression  which  the  case  made  upon  them. 


tice.  Here  will  be  found  forms  for  pleading,  motions,  answers, 
depositions,  stipulations,  appearances  and  decrees — forms,  too,  that 
have  been  tested  in  the  heat  of  actual  controversy.  A  notebook  at 
hand  to  take  down  memoranda  of  the  best  illustrations  of  the  dif- 
ferent forms  used  under  various  circumstances,  together  with  a 
persistent,  thoughtful  and  enthusiastic  examination,  will  save  the 
young  attorney  many  a  mistake  in  pleading  and  practice,  and  arm 
him  with  the  confidence  of  an  older  practitioner. 


PREPARATION  FOR  TRIAL.  45 

On  the  contrary,  the  evidence  should  unroll  before 
them  a  constant  succession  of  surprises,  confirming 
and  increasing  the  favorable  impression  which  they 
first  received  from  the  reading  of  the  petition.  Third : 
The  advocate  should  never  demand  exaggerated  dam- 
ages. This  is  a  common  fault  of  some  attorneys  who 
think  to  overwhelm  the  jury  in  their  favor  by  such 
highly  colored  statements  of  the  effects  of  the  defen- 
dant's wrongful  conduct,  when  as  a  general  rule  the 
jury  is  only  disgusted  by  what  they  consider  an  ill- 
disguised  attempt  to  humbug  them.  It  is  useless  to 
create  such  an  impression  only  to  be  compelled  after- 
wards to  overcome  it  by  the  sheer  strength  of  evi- 
dence. Nobody  can  tell  what  goes  to  make  up  the 
mind  of  the  ordinary  juror  in  deciding  a  closely  con- 
tested case;  and  it  is*  therefore,  always  important 
to  watch  every  opportunity  to  create  a  favorable 
impression,  and  avoid  anything  calculated  to  arouse  a 
feeling  of  disappointment  or  contempt. 

§  23.  Interviewing  and  Coaching  Witnesses.— Next 
in  importance  to  consulting  the  client  is  interviewing 
the  witnesses.  To  best  accomplish  this  the  attorney 
must  know  something  of  them  before  they  are  ap- 
proached. Is  their  attitude  in  the  case  hostile  or 
friendly  to  his  side?  Are  they  under  any  strong 
inducement  to  conceal  facts  or  to  distort  and  color 
them?  Are  they  to  be  relied  on  implicitly  or  must 
we  verify  and  corroborate  all  their  statements?  Are 
they  liable  to  be  tampered  with  by  the  adversary,  or 
are  they  proof  against  all  corrupt  influence?  AVhat 
has  been  their  moral  history?  These,  among  other 
facts,  should  be  considered  before  the  witness  is 
approached,  to  the  end  that  the  advocate  may  secure 
from  him  the  most  and  the  best  proof  he  is  capable 


46  AMERICAN     ADVOCACY. 

of  giving.  What  the  manner  of  that  approach  will 
be  must  depend  upon  the  character  of  the  witness. 
If  the  latter  is  thoroughly  reliable  the  advocate  may 
explain,  with  some  degree  of  fullness,  what  his  posi- 
tion is,  but  never  to  such  an  extent  that,  if  the  wit- 
ness prove  false,  he  can  damage  his  case  by  betraying 
the  advocate's  plan  of  action  to  the  enemy. 

In  his  dealings  with  witnesses  the  advocate  will 
recall  that  most  persons  dread  to  testify  in  court, 
and  among  women  this  reluctance  is  almost  univer- 
sal. If  it  be  evident  that  a  particular  person  knows 
more  than  he  will  tell,  and  keeps  silent  in  the  hope 
that  he  may  escape  the  ordeal  of  testifying,  it  will 
be  necessary  to  argue  the  matter  with  him  in  a  spirit 
of  friendliness,  and  seek  to  overcome  his  fears  or  his 
prejudices  by  legitimate  appeals  to  his  interest  and 
his  sense  of  right  and  justice.  The  co-operation  of 
an  acquaintance  may  be  secured  to  induce  him  to 
divulge  what  he  knows.  If  all  expedients  fail,  and 
the  advocate  is  confident  he  will  not  disclose  the 
facts,  it  will  generally  be  safest  not  to  summon  him  as 
a  witness,  for  his  stubborn  silence  upon  the  witness 
stand  will  detract  from  his  side  of  the  controversy. 

On  the  other  hand,  the  advocate  may  find  his  wit- 
nesses suspiciously  talkative;  they  know  too  much. 
He  will,  therefore,  proceed  with  them,  as  with  his 
client,  sifting  their  knowledge,  cross-examining  them 
as  his  antagonist  will  probable  do  at  the  trial.  He 
will  have  them  narrate  the  details  of  the  events  about 
which  they  seem  conversant.  "Where  did  you  stand 
when  the  accident  occurred?  W7ho  else  was  there? 
Where  had  you  been?  Where,  afterwards,  did  you  go? 
Was  it  daytime  or  dusk?  To  whom  did  you  speak?" 
etc.  Especially,  the  attorney  will  seek  to  discover 


PREPARATION  FOR  TRIAL.  47 

what  are  the  sources  of  the  witness'  knowledge, 
whether  it  is  derived  from  hearsay  reports  or  third 
parties,  or  from  personal  observation,  and  if  they  are 
stating  what  they  actually  saw  and  did,  or  merely  their 
conclusions  and  opinions,  founded  upon  the  facts  per- 
ceived. 

The  attorney  must  warn  his  witness  against  a  very 
common  trick  practiced  by  some  lawyers.  In  endeav- 
oring to  discredit  the  testimony  of  a  witness  they  will 
often  ask  him  on  the  witness  stand  whether  he  has 
consulted  with  the  attorney  of  the  party  in  whose 
behalf  he  has  testified.  The  first  impulse  of  a  wit- 
ness is  to  answer,  no.  This  is  so  apparently  false 
in  most  cases  that  a  jury  is  not  generally  inclined  to 
believe  it.  The  witness  should  be  advised  to  answer 
such  a  question  very  emphatically  in  the  affirmative, 
as  such  an  answer  can  by  no  possibility  injure  the 
case  of  the  party  for  whom  the  witness  testifies  and 
a  very  emphatic  and  abrupt  answer  often  embarrasses 
the  attorney  who  attempts  the  trick. 

The  phrase  "coaching  a  witness"  does  not  at  the 
present  time  appear  to  be  an  attractive  term.  But, 
given  its  proper  significance,  there  is  nothing  ques- 
tionable about  the  process.  Coaching  a  witness  does 
not  mean  manufacturing  evidence  to  put  in  his  mouth. 
On  the  contrary,  it  means  deciding  beforehand,  how 
much  of  the  witness'  story  shall  be  told  on  the  stand, 
and  the  manner  in  which  he  is  to  tell  it.  Its  purpose 
is  to  cut  out  all  irrelevant  matter  and  thus  make  the 
story  of  the  witness  stand  out  as  clearly  and  force- 
fully as  possible,  and  to  prepare  the  witness  for  the 
tricks  of  counsel  on  cross-examination. 

The  main  thing  to  impress  upon  the  witness,  among 
other  things  we  have  already  stated,  is  that,  when 


4$  AMERICAN     ADVOCACY. 

upon  the  witness  stand,  he  speak  out  the  answer  un- 
hesitatingly, with  animation,  and  in  a  clear  and  dis- 
tinct tone  of  voice. 

Some  lawyers  advocate  the  wisdom  of  taking  the 
affidavits  of  witnesses  of  whose  fidelity  or  freedom 
from  influence  they  are  not  certain.  In  case  such 
witness  should  afterwards  be  prevailed  upon  to  deny 
his  former  statements  to  counsel  his  affidavit  will 
not  only  destroy  his  subsequent,  testimony  on  trial, 
but  cast  suspicion  on  the  entire  case  of  the  adversary 
who  called  him. 

§  24.  Interviewing  the  Adversary  Party— Inter-, 
rogatories.— The  attorney  will  not  rest  satisfied  with 
interviewing  all  his  own  witnesses,  but  will  try  to  see 
the  adversary  party  and  those  whom  he  expects  to  call. 
This  is  liable  to  be  a  barren  inquiry;  still,  valuable 
hints  are  sometimes  dropped  which  will  put  him  upon 
his  guard  against  surprise.  In  the  latter  investigation 
he  should  remember  that  it  is  unworthy  of  his  pro- 
fession to  deceive  the  person  interviewed  into  believ- 
ing he  is  conversing  with  an  ally  or  a  friend.  It  is 
entirely  legitimate,  however,  to  study  his  demeanor 
and  to  question  him  closely  in  order  to  decide  how  he 
is  to  be  dealt  with -on  the  trial. 

Whether  it  be  of  any  value  to  submit  interrogatories 
to  the  adverse  party,  as  is  often  done,  is  a  matter  of 
much  doubt.  In  the  great  majority  of  cases,  it  is  too 
much  to  expect  that  an  adversary  will  deliberately  ex- 
pose the  weakness  of  his  own  case  by  answering  in 
the  quietude  of  his  own  office,  and  under  the  direction 
of  his  own  counsel,  leading  questions  propounded  by 
the  advocate  on  the  other  side.  Moreover,  the  practice 
is  sometimes  a  dangerous  one.  An  advocate  may  very 
easily  lay  bare  the  weakness  of  his  own  case  while  he 


PREPARATION  FOR  TRIAL.  49 

is  seeking  that  of  his  opponent.  His  earnest  and  re- 
peated questioning  on  certain  points  tends  to  show 
that  he  is  on  a  fishing  expedition,  and  is  an  implied 
intimation  that  he  is  ignorant  of,  or  has  not  sufficent 
proof  of,  these  particular  features  of  his  case.  Such 
questioning  also,  if  carried  too  far,  prepares  the  wit 
ness  in  advance  for  cross-examination  on  trial.  A 
cross-examination  that  can  be  prepared  for  months 
ahead  will,  most  generally,  be  barren  of  results. 

Interrogatories,  in  order  not  to  be  dangerous  to 
the  party  asking  them  and  possibly  valuable,  should 
be  very  brief,  cover  all  the  various  topics  of  the  cas.e, 
so  as  to  disarm  suspicion  and  lay  absolutely  no  em- 
phasis on  any  particular  phase  of  the  examination.  In 
such  case  a  defendant  may  so  far  forget  himself  as  to 
enter  into  long  explanations  of  the  short  and  diffi- 
cultly answered  o%uestions  thus  submitted.  If  he  does, 
the  advocate  will  be  furnished,  if  not  with  additional 
evidence,  at  least  with  enough  serious  admissions  on 
the  part  of  his  opponent  to  embarrass  the  latter  very 
much  on  cross-examination. 

Answering  interrogatories  will  seem  from  what  we 
have  said  to  be  a  simple  matter.  So  it  is,  if  care  is 
observed  in  certain  particulars.  First:  The  questions 
propounded  should  be  answered  briefly.  The  advo- 
cate should  not  go  at  all  into  details  or  show  in  the 
slightest  degree  his  plan  of  defense.  Second:  Every 
question  should  be  answered  with  candor  and  accu- 
racy. Nothing  is  so  fatal  before  a  jury  as  evasion  or 
attempted  evasion,  unless  it  be  deliberate  inaccuracy 
of  statement.  Third:  The  advocate  should  not  argue 
his  case  with  his  opponent  in  answers  to  interrogato- 
ries propounded,  nor  show  the  slightest  interest  or 
feeling  in  respect  to  any  particular  question;  for,  in 


50  AMERICAN     ADVOCACY. 

the  former  instance,  he  plays  his  best  cards  in  a  pre- 
liminary game  that  does  not  count,  and,  in  the  latter 
case,  he  betrays  his  weak  points  to  the  enemy  before 
the  battle,  and  may  expect  repeated  and  redoubled  as- 
saults in  that  direction.  Fourth:  Every  answer  given 
must  stand  the  test  of  cross-examination.  Nothing  is 
so  embarrassing  and  provoking  as  to  find  oneself  tied 
up  on  the  trial  of  a  case  by  unnecessary  and  equivocal 
statements  made  in  answer  to  interrogatories  sub- 
mittted  before  trial. 

§  25.  What  to  Do  with  Weak  or  Dangerous  Points 
in  the  Line  of  Battle.— Should  a  point  which  tells 
against  a  party  be  ignored  by  him  in  preparing  for 
trial?  Emphatically  no.  First:  Because,  the  judge  or 
jury  will  not  ignore  it.  To  them  this  point  will  stand 
out  as  a  great  obstruction,  and  conceal  all  the  other 
phases  of  the  case,  and  the  disappointment  will  be 
keen  if  the  advocate  fails  to  remove  it.  His  failure 
in  this  regard  will  also  raise  a  suspicion  of  conceal- 
ment against  him,  beside  which  there  is  no  more  dam- 
aging impression  which  an  attorney  can  arouse  in  the 
minds  of  the  jury  trying  his  case.  Second:  Because 
such  a  point  is  not  often  absolutely  insurmountable.  It 
may  not,  possibly,  be  -successfully  contradicted,  but 
its  value  as  evidence  may  be  very  materially  dimin- 
ished by  a  clear  explanation  and  a  bold  assault  upon 
it.  Evidence  of  surrounding  circumstances,  also,  may 
serve  to  obscure  and  cover  up  the  point  so  that  it  no 
longer  stands  out  so  prominently  in  the  mind  of  the 
judge  or  jury.  It  must  also  be  remembered  that  these 
dangerous  points,  so  called,  are  often  based  solely  on 
circumstantial  evidence,  and  evidence  of  that  charac- 
ter, however  strong,  is  not  held  in  favor  by  juries.  Let 
the  advocate,  therefore,  approach  it  confidently  and 
without  fear  or  concealment. 


PREPARATION  FOR  TRIAL.  51 

§  26.  Reading  "Up"  the  Law  of  the  Case.— Up  to 
this  juncture  the  advocate's  examination  of  the  law 
governing  his  suit  has  been  superficial,  and  has  been 
guided  by  his  general  preparation  before  referred  to ; 
now,  he  should  begin  to  read  up  on  his  case,  holding 
his  mind  open  to  new  impressions  and  suggestions. 
Here  he  will  experience  one  of  the  keenest  delights  of 
practical  legal  study,  when  some  chance  remarks  of 
a  court  or  the  facts  of  a  reported  case  suddenly  send 
a  flash  of  light  upon  his  inquiry,  and  he  sees  a  bright, 
fresh  argument  of  which  he  had  not  even  dreamed. 
The  attorney  should  first  read  his  own  state  reports 
and  statutes,  for  many  young  lawyers  who  have  pur- 
sued their  studies  at  an  institution  where  reports  of 
one  particular  state  are  most  frequently  cited,  acquire 
an  undue  friendliness  toward  such  reports,  and  are 
reluctant  to  have  recourse  in  the  first  instance  to  those 
of  their  own  jurisdiction,  preferring  to  begin  their 
researches  among  cases  far  from  home.  In  his  investi- 
gations the  advocate  should  try  to  forestall  his  adver- 
sary's arguments,  and  be  prepared  to  meet  and  match 
them,  since  he  is  a  poor  lawyer  who  can  see  only  one 
side  of  a  case.  Finally,  when  he  has  exhausted  the  law 
in  his  researches  and  has  caught  and  chained  every 
legal  argument  which 'the  facts  suggest  or  afford,  he 
should  cull  out  a  few  of  the  strongest,  clearest  and 
most  convincing  ones  and  throw  his  entire  weight 
upon  them,  avoiding  the  folly  of  elaborating  a  long, 
involved  argument  in  which  he  clutches  at  every  straw 
and  splinter  that  floats  within  his  reach.  The  advocate 
should  let  all  hair-splitting  and  scholasticism  go;  he 
should  give  forth  great  masses  of  light  and  strive  for 
strength  and  clearness,  not  prettiness;  conviction,  not 
ingenuity. 


52  AMERICAN     ADVOCACY. 

§  27.  Preparation  of  Address  to  the  Jury.— Thus 
far  we  have  dealt  with  the  argument  on  the  law  side 
of  the  controversy.  Much  the  same  method  will  be 
pursued  in  discovering  arguments  by  which  the  advo- 
cate seeks  to  prove  to  the  jury  the  existence  or  non- 
existence  of  some  fact  in  dispute.  He  will  never  for- 
get that  he  is  addressing  unlearned  men,  men  who 
are  unaccustomed  to  reason  deeply  or  to  hold  a  long 
train  of  arguments  in  their  memories.  What  they 
can  comprehend  must  be  simply  and  plainly  told.  The 
advocate  should  ask  himself  what  arguments  would 
appeal  to  the  ordinary  man,  and  use  these  rather  than 
others  which  are  fanciful  and  abstruse.  The  advocate 
should  speak  with  a  plan  in  his  mind.  Nothing  is 
easier,  for  there  are  three  great  divisions  under  which 
may  be  included  all  he  cares  to  say  in  an  argument 
upon  the  facts  before  courts  or  juries :  First :  The 
right  (the  law  of  the  case).  Second:  The  wrong  (a 
discussion  of  the  evidence  and  what  it  proves).  Third : 
The  remedy  (what  verdict  ought  the  jury  to  render  in 
the  light  of  the  law  and  the  facts)?  Thus  every  case 
may  be  argued  according  to  the  syllogism — the  major 
premise  being  "the  law,"  the  minor  premise  "the 
evidence,"  and  the  conclusion  "the  redress."  The 
form  of  the  whole  argument  is  as  follows:  "The  rule 
of  law  is  this :  the  facts  of  the  case  are  these,  and  bring 
it  within  the  rule  stated;  therefore,  the  plaintiff  is 
entitled  to  recover."  Then  let  the  advocate  shut  him- 
self in  his  room  and  speak  his  entire  argument  aloud 
to  an  imaginary  jury,  exactly  as  he  intends  to  deliver 
it  in  open  court. 

§  28.  The  Three  Cardinal  Requisites.— In  all  his 
labors,  the  advocate  should  observe  three  cardinal 
requisites:  method,  concentration  and  enthusiasm. 


PREPARATION  FOR  TRIAL.  53 

Without  the  first,  his  efforts  will  be  spasmo- 
dic and  abortive.  He  will  feel  that  he  is  accom- 
plishing little,  and  discouragement  and  listlessness 
will  sap  his  strength.  But  where  his  work  proceeds 
according  to  system,  it  acquires  a  momentum  carrying 
it  on  to  its  consummation,  while  the  energy  expended 
is  proportionately  conserved.  To  the  task  in  hand 
the  lawyer  must  bend  his  attention  with  an  iron  deter- 
mination. For  him,  nothing  in  the  world  is  so  im- 
portant as  the  work  before  him.  Into  it,  he  must  put 
his  whole  being.  "\Vith  this  strain  of  the  mind  must 
co-operate  an  enthusiasm  for  the  undertaking  which 
is  proof  against  interruptions  and  undaunted  by  dif- 
ficulties. It  must  buoy  his  spirit  and  quicken  his  wit, 
until  he  beholds,  lying  completed  before  him  the  task 
from  which  he  shrank,  but  which  has  yielded  to  his 
perseverance.  Never  for  one  instant,  will  he  indulge 
the  fatal  desire  to  perform  first,  that  which  is  easy 
and  agreeable,  leaving  the  stern,  hard  problems  to 
await  a  more  convenient  season.  Intricate  or  easy, 
repel] ant  or  attractive,  each  will  be  solved  as  it  pre- 
sents itself,  zealously,  systematically  and  with  unwav- 
ering purpose.1 

i  When  asked  his  rule  of  work,  the  late  Lord  Russell  answered 
as  follows:  "If  you  ask  me  to  reduce  the  common  habit  of  my 
life  to  formula,  I  will  tell  you  that  I  have  only  four  rules  to  guide 
me  in  preparing  my  work — first  to  do  one  thing  at  a  time,  whether 
it  is  reading  or  eating  oysters,  concentrating  such  faculties  as  I 
am  endowed  with  upon  what  I  am  doing  at  the  moment;  second, 
when  dealing  with  complicated  facts,  to  arrange  the  narrative  of 
events  in  the  order  of  time.  My  third  rule  is  never  to  trouble  my- 
self about  authorities  supposed  to  bear  on  a  particular  question  un- 
til I  have  accurately  and  definitely  ascertained  the  precise  facts; 
and,  lastly,  I  try  to  apply  the  judicial  faculty  to  the  case  before 
me,  in  order  to  determine  what  are  its  strong  and  weak  points, 
and  to  settle  in  my  own  mind  on  what  the  issue  depends." 


CHAPTER  III. 


OPENING   PLAINTIFF'S   CASE. 


§  2J).  Confidence  in  his  Case. 

30.  Narration     not     Argument 

in  Opening  Statement. 

31.  Anticipating      Defendant's 

Case. 

32.  Redundancy      of      Expres- 

sion  in   Opening   State- 
ment 


§  33.  Ornamentation  and  Illus- 
tration in  Opening 
Statement. 

34.  Order     and     Arrangement 

of     Facts     in     Opening 
Statement. 

35.  Moderation      in      Opening 

Statement. 

36.  Length   of   Opening    State- 

ment. 


§  29.  Confidence  in  His  Case.— The  first  thing  for 
the  advocate  to  do  in  opening  his  case  is  to  impress 
the  jury  with  the  idea  that,  at  least,  he  believes  in  it 
himself.  This  may  seem  almost  too  obvious  a  truism 
to  mention,  and  no  doubt  it  is  present  to  the  mind  of 
every  advocate.  "We  all  know  it,  or  believe  we  do. 
The  youngest  student  will  say:  "Of  course  you  must 
make  the  jury  believe  that  you  think  your  case  is  an 
honest  one.  Everybody  knows  that."  Granted;  but 
it  is  not  the  simply  knoiving  it,  but  a  very  different 
thing,  viz.,  the  making  the  jury  believe  this.  There 
are  those  whose  manner  is  such  that  they  scarcely 
ever  seem  to  believe  in  their  own  case.  A  want  of 
seriousness  has  characterized  their  tone  and  lan- 
guage. This  is  a  fatal  blunder  of  style.  There  is 
nothing  which  a  jury  so  much  detests  in  the  person 
addressing  them  as  an  air  of  jaunty  frivolity. 


OPENING   PLAINTIFF'S    CASE.  55 

§  30.  Narration  Not  Argument  in  Opening  State- 
ment.—What  is  really  required  in  the  plaintiff's  open- 
ing of  his  case  is  a  simple  well-told  narrative  of  the 
facts.  The  fewer  words  the  better,  and  the  less  argu- 
ment the  more  likely  is  a  plaintiff's  statement  to  be 
believed.  It  must  seem  a  strange  story  to  the  jury  if 
it  requires  arguing  upon  before  the  other  side  have 
had  a  syllable  to  say  in  contradiction!  An  advocate 
will  sometimes  in  his  opening,  as  though  he  were 
stumbling  among  improbabilities  at  every  step,  as- 
sert that  the  plaintiff  was  on  his  proper  side  of  the 
wa\^  and  that  he  will  convince  them  that  that  must 
have  been  so,  because,  etc.,  etc.  This  is  as  bad  as  an 
opening  can  be,  because  it  casts  a  doubt  at  the  very 
commencement  upon  the  truth  of  his  own  story.  The 
best  reason  for  the  jury's  believing'  the  plaintiff's 
story  before  contradiction  is  that  his  witnesses  swear 
to  it.  When  the  other  side  shall  have  brought  facts 
in  conflict  with  it,  the  plaintiff's  time  of  argument 
will  have  arrived,  and  his  arguments  will  have  a 
freshness  which,  if  used  before,  they  would  not  pos- 
sess; they  will  work  as  if  their  edge  had  not  been 
taken  off  by  a  clumsy  exhibition  when  there  was  noth- 
ing to  cut.  When  there  is  no  grist  the  miller  stops  his 
mill.  Another  advantage  to  the  plaintiff  from  not  ar- 
guing too  soon  is  that  his  adversary  is  not  able  to 
turn  his  arguments  against  him,  nor  adapt  his  own 
in  accordance  with  the  plaintiff's  theories.  At  the 
expense  of  repetition,  this  point  is  impressed  upon 
the  student's  attention,  because  it  is  of  the  greatest 
importance;  a  good  cause  may  be  thrown  away  by  a 
weak  and  indiscreet  opening. 

§  31.  Anticipating  Defendant's  Case.— There  is  an- 
other evil — not  the  least  under  the  sun  in  advocacy — 


56  AMERICAN     ADVOCACY. 

which  consists  in  constantly  anticipating  your  oppo 
nent's  case.  It  is  a  similar  fault  to  that  of  plaintiff 
arguing  in  defense  of  his  assertions  before  they  are 
attacked,  but  a  trifle  perhaps  more  dangerous.  Some 
advocates  think  it  proper  to  anticipate  the  defense 
and  demolish  it  at  once.  This  would  doubtless  be  an 
excellent  mode  of  warfare  if  he  could  accomplish  it. 
But  the  law  gives  the  defendant  the  right  to  present 
his  case,  and  after  that  has  been  done,  it  then  becomes 
the  plaintiff's  duty  to  demolish  it.  Even  if  .the  advocate 
know  the  exact  line  the  defendant  is  going  to  take, 
it  is  not  always  advisable  to  meet  him  half-way.  But 
in  ninety-nine  cases  out  of  a  hundred  he  does  not 
know  the  manner  in  which  the  latter 's  case  will  be 
presented,  although  he  may  know  what  his  defense  is. 
After  he  has  opened  it  and  employed  his  arguments, 
the  plaintiff  knows  the  exact  line  defendant  has  taken ; 
and  if  he  cannot  beat  him  then,  it  is  quite  certain  he 
could  not  have  done  so  before.  One  often  hears  an 
advocate  say,  "he  cannot  conceive  what  defense  his 
learned  friend  can  have"— that  "it's  really,  gentle- 
men, an  undefended  case."  It  is  impossible  to  conceive 
of  anything  more  unskillful  and  ineffective  than  this. 
Such  assertions  are  worse  than  useless.  They  are  no 
part  of  the  opening;  they  are  not  argument;  they  lend 
no  emphasis  to  the  statement;  and  they  are  not  true 
They  impress  neither  judge  nor  jury ;  but  they  some- 
times make  the  counsel  who  utters  them  look  ex- 
tremely disappointed.  If  the  learned  gentleman  on 
the  other  side  has  no  case,  it  will  appear  without 
plaintiff's  attorney  saying  so.  If  he  has  a  case,  the 
plaintiff  saying  he  has  none  will  not  alter  the  fact. 

§  32.  Redundancy  of  Expression  in  Opening  State- 
ment.—It  would  be  out  of  place  to  say  anything  fur- 
ther with  regard  to  redundancy  of  expression,  were  it 


OPENING    PLAINTIFF'S    CASE.  57 

not  a  prominent  fault  with  many  young  advocates. 
The  fewest  words,  as  a  rule,  make  the  best  speech.  All 
the  language  not  required  to  convey  ideas  is  sur- 
plusage, and  if  used  at  all,  should  be  of  the  very  best ; 
if  not  required  for  use,  it  should  be  employed  for  the 
purpose  of  lending  dignity  or  embellishment.  It  may 
be  said  that  baldness  of  expression  is  not  compatible 
with  excellence.  It  is  quite  true  that  the  graces  of 
eloquence  lend  a  charm  to  the  speaker  as  well  as  the 
speech.  These  doubtless  should  be  cultivated  and  em- 
ployed when  in  a  state  of  cultivation,  but  not  before. 
Redundancy,  however,  is  not  a  grace,  but  a  deformity, 
and  the  way  to  cultivate  that  is  to  cut  it  off  altogether. 
Poverty  of  language  is  one  thingk,  selection  of  words 
another,  and  there  may  be  the  greatest  poverty  of 
language  with  the  greatest  redundancy  of  words. 

§  33.  Ornamentation  and  Illustration  in  Opening 
Statement.— Of  course  no  one  would  say  that  orna- 
mentation is  to  be  ignored.  On  the  contrary,  it 
should  be  carefully  used,  not  laid  on  so  as  to  smother 
that  which  it  should  render  more  attractive.  But 
even  diamonds,  scarce  and  valuable  though  they  be, 
are  frequently  out  of  place  by  way  of  embellishment. 
Illustration  sparingly  employed  is  an  effective  orna- 
ment; and  so  much  so,  that  there  is  often  a  danger 
of  even  truth  and  reason  being  sacrificed  to  it.  Minds 
are  apt  to  be  carried  away  by  a  beautiful  simile,  and 
because  that  is  true,  are  prone  to  consider  that  the 
argument  illustrated  must  be  true  also.  But  in  an 
opening  speech  illustration  should  be  utterly  aban- 
doned. Fact,  and  fact  alone,  is  the  strength  of  an 
opening  speech. 

§  34.  Order  and  Arrangement  of  Facts  in  Opening 
Statement.— It  may  be  said  no  one  doubts  that  order 


58  AMERICAN     ADVOCACY. 

and  arrangement  are  necessary  to  make  a  good  open- 
ing statement.     It  is  so  true,  that  almost  every  one 
knows  it  and  no  one  denies  it ;  but  so  long  as  so  many 
advocates  act  as  if  they  did  not  know  it,  and  not  only 
neglect  all  order,  method  and  arrangement,  but  con- 
fuse facts  and  dates  to  the  annoyance  of  judge  and 
jury,  and    to    the   disparagement    of    their  client,    it 
seems  not  unnecessary   to   insist    that  the    strictest 
attention  should  be  paid  to  the  order  of  time,  the 
order  of  facts,  and  the  arrangement  of  causes  and 
effects.     Every  statement  should    be    as    free    from 
confusion  as  if  the  facts  had  been  mapped  out  on 
paper  with  the  utmost  faithfulness.     Every  series  of 
facts  should  be  brought  down  in  the  strictest  order; 
and  if  there    be  many  series    operating    apart,  but 
exercising  an  influence  upon  the  main  action  of  the 
drama,  they  should  be  brought  down  in  their  natural 
order  and  sequence  until  they  are  all  centered  upon 
the  common  point.    In  the  most  complicated  and  tan- 
gled circumstances  there  should  be  no  confusion.  It 
is  the  business  of  the  advocate  and  the  art  of  advocacy 
to  separate  them,  and  to  show  their  relations  to  one 
another,  their  bearings  upon  each  other,  and  their  in- 
fluence   upon    the    main  action.     Irrelevant  matter, 
therefore,  should  be  carefully  excluded — by  no  means 
so  easy  a  task  as  at  first  sight  appears,  and  only  to 
be   accomplished   by  diligent    study    and   thoughtful 
practice.    What  is  the  issue,  and  upon  ivhat  evidence 
will  it  depend?   Determine  that  first  and  then  the  evi- 
dence will  arrange  itself  almost  naturally.1 

i  As  an  instance,  take  the  following  pleadings:  A  endeavors 
to  set  up  a  lost  will.  He  alleges  that  it  was  made  and  executed 
on  a  certain  day  five  years  ago,  and  that  it  never  was  revoked. 
The  defendant  denies  the  making  in  accordance  with  the  require- 
ments of  the  statute;  says  that  the  alleged  testator  was  not  of 


OPENING   PLAINTIFF'S    CASE.  59 

§  35.  Moderation  in  Opening  Statement.— In  open- 
ing a  case,  moderation  is  more  forcible  than  exaggera- 
tion. The  latter  is  weakness.  To  open  a  strong  case 
is  not  to  prove  it.  What  the  advocate  should  strive  to 
do  is  to  give  the  substance  (somewhat  more  than  an 
outline)  of  the  case  he  intends  to  prove.  This  should 
be  done  so  that  when  the  evidence,  usually  in  dis- 
jointed, and  often  in  widely  separated  parts,  is  pre- 

sound  mind,  memory  and  understanding;  that  the  will  was  after- 
wards destroyed  while  he  was  of  sound  mind,  memory  and  under- 
standing, with  the  intention  of  revoking  it,  and  that  the  plaintiff 
is  not  a  legatee.  Now,  it  will  be  obvious  here  that  many  issues 
will  present  themselves;  but  it  may  be  equally  apparent  to  the 
counsel  for  the  plaintiff  that  the  whole  question  may  ultimately  re- 
solve itself  into  this,  whether  some  particular  ivitness  saw  the  will 
at  a  particular  time.  This  may  depend  not  upon  the  accuracy  of 
the  witness'  memory,  but  upon  his  credibility.  The  decision, 
therefore,  may  turn  entirely  upon  the  question  as  to  whether  a 
certain  witness  can  be  believed  or  not.  The  execution  may  be  be- 
yond doubt;  the  sanity  of  the  testator  up  to  a  certain  time  indis- 
putable; the  contents  provable  by  some  draft  or  otherwise;  the 
question  of  destruction  or  no  by  the  testator,  before  a  given 
moment,  uncontroverted;  the  insanity  of  the  testator  from  a  given 
time  also  placed  beyond  controversy;  the  issue,  therefore,  will  re- 
solve itself  into  the  question  whether  the  instrument  was  in  ex- 
istence between  two  given  periods,  and  that  must  depend  upon  the 
evidence  to  this  fact  of  the  person  who  saw  it  in  the  meantime.  If 
he  be  believed,  verdict  for  the  plaintiff;  if  disbelieved,  for  the  de- 
fendant. Now,  it  will  be  obvious  that  to  lay  much  stress  upon 
those  points  which  will  be  placed  beyond  all  dispute  as  the  evi- 
dence is  unfolded  would  be  wasted  energy.  The  facts  should,  of 
course,  be  stated  with  due  precision  and  conciseness,  but  to  dwell 
upon  them  would  only  be  wearying  the  jury  to  no  purpose,  and  di- 
verting their  attention  from  the  proper  object  of  inquiry.  The 
thing  really  to  be  done  is  to  impress  them  with  the  reliability  of 
the  witness;  if  they  disbelieve  him,  the  advocate's  case  is  lost; 
therefore,  the  latter  must  guard  him  against  the  assaults  of  his 
opponent,  whose  skill  will  be  directed  to  breaking  him  down.  He 
will  know  that  this  is  the  key  of  his  position.  But  how  is  the  wit- 
ness to  be  strengthened?  If  he  have  no  corroboration,  must  he 
not  stand  by  himself?  By  no  means.  A  hundred  incidents  in  the 
story  to  which  his  witness  speaks  may  be  corroborated  by  other 


(50  AMERICAN     ADVOCACY. 

sented  piece  by  piece  to  the  jury,  they  may  see  the 
bearings  of  each  upon  that  which  has  gone  before, 
and  afterwards  upon  the  whole,  and  appreciate  its 
value.  But  a  plaintiff  should  never  omit  any  mate- 
rial point  of  his  case  in  the  opening,  because,  besides 
being  occasion  for  a  non-suit,  it  will  generally  be 
received  by  the  jury  in  the  form  with  which  he  im- 
presses it,  and  will  be  accepted  by  them  almost  as 
proof  before  the  evidence  comes  in  support  of  it. 
When  the  evidence  does  come  its  weight  will  often  be 
supplemented  by  the  opening.  Although,  the  facts 
themselves  are  neither  changed  nor  exaggerated,  they 
are  the  more  deeply  impressed.  Suppose  an  advocate 
has  a  number  of  witnesses  to  prove  various  facts  which 
are  separate  and  apparently  disconnected  from  one 
another,  but  yet  having  a  bearing  directly  or  indi- 
rectly upon  the  main  issue.  These  witnesses  repre- 
sent those  numerous  facts,  which  have  happened  at 
different  times  in  different  places,  yet  which  are  all 
working  towards  a  common  center,  confirming  and 
corroborating  one  another,  leading  up  to,  and  indeed 
forcing  on  the  main  event  of  the  story.  It  is  obvious 
that  in  opening  a  case  of  this  kind,  if  the  advocate 
would  make  the  narrative  clear,  he  must  deal  com- 
pletely with  one  set  of  facts  at  a  time — the  earliest 
in  date  probably  being  the  best  to  commence  with. 
These  should  be  made  plain  and  intelligible  to  the 
jury  merely  as  facts,  and  no  attempt  should  be  made 

testimony,  and  this  will  tend  to  show  his  truthfulness.  He  must 
search  for  this  kind  of  corroboration  when  he  has  no  other,  and 
if  he  show  that  he  is  generally  supported  by  other,  and  it  may  be 
totally  independent  witnesses,  upon  points  which  neither  he  nor 
they  deemed  material;  if  he  show  that  the  story  is  consistent  in 
itself,  and  is  likewise  compatible  with  the  probabilities  of  the  case, 
he  may  rely  upon  it  that  the  verdict  will  be  his. 


OPENING    PLAINTIFF'S    CASE.  g| 

to  show  their  bearing  upon  the  main  point  of  the 
case  until  the  other  branches  of  the  subject  are  in 
like  manner  made  intelligible.  If  this  be  done  too  early 
the  effect  will  be  lost,  the  narrative  will  be  disturbed, 
and  the  minds  of  the  hearers  confused.  The  first  set 
of  facts  should  be  stated  and  left  ready  to  be  fitted  in 
at  the  right  time.  The  jury,  having  thus  seen  the  sep- 
arate parts  of  the  plaintiff's  narrative,  will  perceive 
readily  what  position  each  will  occupy,  and  what  rela- 
tion it  will  bear  to  the  others.  It  need  scarcely  be 
said,  that  if  the  advocate  make  any  part  out  of  due 
proportion  to  the  rest  by  exaggeration,  it  will  not  fit 
in,  and  will  spoil  the  symmetry  of  the  whole.  He 
should  seek  only  to  make  his  statement  appear  truth- 
ful and  natural.  Short  of  this  the  opening  will  be  a 
failure;  beyond  it  the  evidence  will  be  a  failure. 

&  36.  Length  of  Opening  Statement.— It  may  not  be 
superfluous,  in  concluding  this  chapter,  to  say  that  a 
speaker  in  opening  a  case  should  never  be  rapid.  As 
a  rule  rapidity  of  utterance  is  not  a  common  fault, 
but  there  are  many  who  talk  too  fast,  and  as  a  neces- 
sary consequence  say  too  little.  It  is  difficult  for  all 
who  are  not  the  most  finished  speakers  to  make  a 
sentence,  and  it  is  not  easy  for  juries  to  follow  at  all 
times  deliberate  speakers  who  can  make  one ;  but  what 
must  their  difficulty  be  in  following  a  man  who  speaks 
with  great  volubility,  and  never  makes  a  sentence  at 
all?1  Slow,  sure  and  short,  is  a  good  motto  for  young 


i  "Can't  make  head  or  tail  of  him,"  said  a  juror  after  a  flippant 
young  lawyer  had  sat  down;  "talks  too  fast."  "What's  the  action 
for?"  asked  another.  "Is  he  for  plaintiff  or  defendant?"  inquires  a 
third.  An  advocate  had  better  not  open  his  case  at  all  if  he  can- 
not leave  a  better  impression  than  this — he  is  simply  injuring  his 
client. 


(}0  AMERICAN     ADVOCACY. 

advocates.  A  long  opening  is  wearisome  and  unneces- 
sary, and  can  only  be  made  long  by  repetition.  Not 
that  an  advocate  can  deal  out  speeches  by  the  yard, 
or  cut  them  off  in  lengths  as  required.  Indeed,  a 
speech  may  be  very  long  that  occupies  twenty  minutes ; 
it  may  be  admirably  concise  and  take  six  hours.  The 
opening  in  the  Tichborne  trial  for  perjury  occupied 
some  days,  but  it  is  a  model  of  neatness,  arrange- 
ment and  concise  narrative.  A  short  speech  is  more 
powerful  than  a  long  one.  When  jurymen  tap  the 
ledge  of  their  desk  with  impatient  fingers,  the  advo- 
cate may  take  it  for  granted  he  has  been  already  too 
long,  and  every  additional  word  may  be  not  only  a 
burden  to  them,  but  also  to  his  client.  Consistently, 
therefore,  with  those  graces  of  diction  without  which 
language  would  sometimes  be  offensively  bald,  the 
fewer  words  the  advocate  employs,  the  better.  It  by 
no  means  follows  that  he  should  speak  in  telegrams, 
but  that  mere  verbiage  should  ,be  pruned  away,  so  that 
there  may  be  greater  strength  and  a  more  symmetrical 
and  cultured  beauty. 


CHAPTER  IV. 


OPENING  DEFENDANT'S  CASE. 


§  43.  Arrangement  of  Facts 
With  Regard  to  Prob- 
abilities. 

44.  Artistic     Arrangement     of 

Evidence. 

45.  Answering  Exaggerated  or 

Improbable   Evidence. 

46.  Effect  of  Defendant  Prais- 

ing His  Own  Witnesses 

47.  Points    of    Rhetoric    to    be 

Observed      by       Defen- 
dant's Attorney. 


§  37.  General   Rules. 

38.  When  and  Where  to  Open 

the  Attack. 

39.  Effect  of  Argument  in  De- 

molishing         Plaintiff's 
Case. 

40.  Use     of     Plaintiff's      Wit- 

nesses  to  Prove   Defen- 
dant's Case. 

41.  Force  of  Eloquence  in  De- 

fendant's       Opening 
Speech. 

42.  Misstatements     and     False 

Representations  by  De- 
fendant. 

§  37.  General  Rules.— If  ever  a  case  looks  hopeless, 
it  should  be  the  defendant's  at  this  present  moment. 
The  jury,  if  they  had  to  determine  the  case  now, 
should  be  unanimous  in  favor  of  his  opponent.  If  the 
facts  are  not  strong,  however,  or  the  counsel  is  not 
strong,  or  has  not  made  the  most  of  his  case,  the  jury 
will  be  divided,  but  none  of  them,  "very  unanimous" 
in  the  plaintiff's  favor.  In  these  circumstances  the 
verdict  for  the  defendant  is  as  good  as  won.  Disaster 
awaits  the  advocate  for  the  plaintiff  who  has  not  the 
jury  with  him  at  this  stage  of  the  case.  In  a  season 
of  such  depression  an  extraordinary  accession  of  good 
feeling  will  take  possession  of  the  breast  of  the  plain- 


(J4  AMERICAN     ADVOCACY. 

tiff's  attorney.  Wouldn't  it  be  better  for  all  parties 
to  agree  and  an  amicable  arrangement  be  come  to?  If 
the  defendant's  counsel  be  wise,  he  will  yield  to  no 
such  blandishments.  The  flag  of  truce  is  but  the  sig- 
nal of  distress,  and  he  should  push  on  his  advantages 
to  their  legitimate  .conclusion.  He  should  not  capitu- 
late when  he  has  won  the  battle,  or  surrender  when 
the  enemy  is  in  full  retreat. 

It  is  not,  however,  invariably  the  fact  that  a  weak 
case  for  the  plaintiff  is  at  its  strongest  at  the  close. 
The  defendant's  counsel  frequently  strengthen  it  ma- 
terially. Sometimes,  indeed,  the  cross-examination  of 
his  own  witnesses  absolutely  proves  it.  It  follows, 
therefore,  that  very  great  discretion  and  skill  are 
requisite  in  opening  the  case  for  the  defendant.  It  is 
surrounded  with  obstacles,  and  is  a  far  more  difficult 
task  than  opening  that  for  the  plaintiff. 

§  38.  When  and  Where  to  Open  the  Attack.— The 
first  thing  to  decide  is  at  what  point  to  commence 
the  attack.  A  great  deal  may  depend  upon  this.  The 
advocate  may  expend  much  energy  in  fruitless  work. 
The  weak  places  are  undoubtedly  attractive,  but,  as 
a  rule,  should  be  reserved,  because  at  a  later  period 
the  effect  will  be  greater  and  the  demolition  appear  to 
be  more  complete.  The  strong  points,  therefore, 
should  be  attacked  first,  but  not  by  direct  blows.  One 
cannot  knock  down  a  substantial  wall  by  butting  his 
head  against  it.  There  are  improbabilities  and  incon- 
sistencies, perhaps,  or  partialities  to  deal  with.  The 
advocate  may  possibly  get  at  these  and  shake  the 
very  foundations  on  which  the  whole  fabric  rests.  If 
the  advocate  have  accomplished  anything  by  cross- 
examination,  it  will  be  of  inestimable  service  at  this 
period  of  the  case.  But  his  speech  must  be  directed 


OPENING  DEFENDANT'S  CASE.  65 

first  to  weaken  before  he  brings  to  bear  the  reserved 
forces  which  he  has  stored  up  as  the  result  of  his  cross- 
examination. 

§  39.  Effect  of  Argument  in  Demolishing  Plaintiff's 
Case.— That  which  was  to  be  avoided  in  opening  a  case 
for  the  plaintiff  is  the  strength  of  the  defendant's 
opening — namely,  argument.  It  is  not  meant  to  affirm 
that  one  can  demolish  an  isolated  fact  by  argument; 
but  a  series  of  facts,  some  of  which  may  be  true  and 
some  false,  may  be  made  to  demolish  one  another.  If 
the  defendant's  attorney  can  show  that,  assuming  all 
the  facts  to  be  true,  they  do  not  necessarily  prove  the 
plaintiff's  case,  he  will  have  gone  a  long  way  to  es- 
tablish his  own.  By  this  mode  of  proceeding  he  will 
already  have  dealt  with  the  strongest  portions  of  the 
case  against  him.  When  he  arrives  at  the  weaker 
parts  he  should  avoid  above  all  things  a  furious  and 
vehement  onslaught;  otherwise  they  will  appear  more 
formidable  than  they  really  are.  Let  the  force  be  pro- 
portioned to  the  task.  A  well-worded  argument  will 
be  infinitely  more  effective  than  fiery  declamation. 
By  removing  some  of  his  opponent's  points  in  a  quiet 
but  effective  manner,  the  jury  will  believe  the  defend- 
dant's  attorney  must  be  right  with  regard  to  many 
others  that  he  has  not  removed.  He  will  gain  credit 
for  a  great  deal  more  than  he  has  actually  accom- 
plished, and  his  success  will  have  a  retrospective  ef- 
fect. In  other  words,  the  more  respectable  facts  will 
get  a  bad  character  by  being  found  in  company  with 
those  which  the  advocate  proves  to  be  weak  and  cor- 
rupt. 

§  40.  Use  of  Plaintiff's  Witnesses  to  Prove  Defend- 
ant's Case.— It  often  happens  that  a  witness  is  called 
for  the  plaintiff  whose  evidence  is  worthless.  It  may 

5 


ftg  AMERICAN     ADVOCACY. 

not  be  valueless  to  the  defendant.  But  the  latter 's 
attorney  should  by  no  means  be  overeager  to  attack 
him.  He  should  be  kept  as  a  surprise  for  the  end  of 
the  advocate's  comments  on  the  plaintiff's  witnesses, 
and  then  be  held  up  above  the  crowd  and  made  the 
principal  figure  in  the  group.  Whatever  he  has  said 
in  the  defendant's  favor,  will,  of  course,  materially 
assist  and  confirm  the  argument  of  the  defendant's 
attorney.  The  latter  will,  in  fact,  be  proving  his  case 
by  the  opponent's  witnesses — a  happy  mode  of  con- 
ducting a  cause  to  a  successful  conclusion,  when  he  is 
permitted  to  do  so.  An  admission  against  the  party 
making  it  possesses  a  force  which  belongs  to  no  other 
class  of  evidence  except  documentary. 

§  41.  Force  of  Eloquence  in  Defendant's  Opening 
Speech.— A  bad  speech  will  impoverish  the  best  of 
cases.  The  defendant's  case  will  in  all  probability  be 
judged  by  the  speech  with  which  it  is  introduced,  and 
the  first  impressions  are  not  easily  removed.  On  the 
other  hand,  many  a  case  has  been  won  by  the  opening 
speech  for  the  defendant.  Everything  seemed  to  be 
swept  away  before  it,  and  a  clear  field  left  for  the 
evidence  that  was  to  follow.  And  it  may  be  said,  if 
once  the  defendant's  counsel  gets  a  thorough  hold 
upon  the  jury  in  his  opening  speech,  the  case  is  as  good 
as  won.  The  evidence  will  appear  to  be  merely  supple- 
mentary, to  confirm  the  jury  in  the  opinion  they  will 
have  formed.  It  is  true  facts  are  more  powerful 
than  argument,  but  when  argument  and  eloquence 
lay  hold  of  a  fact  that  is  not  absolutely  sound,  they 
will  press  it  out  of  all  recognition,  and  dispose  of  it 
as  though  it  were  a  bubble.  The  best  case  may  be 
ruined  by  a  bad  speech,  as  a  splendid  fortune  may  be 
thrown  away  by  a  fool;  while  a  good  speech  will  im- 


OPENING  DEFENDANT'S  CASE.  67 

part,  or  appear  to  impart,  to  a  bad  case,  some  of  its 
own  excellences.  There  is  nothing  of  art  in  the 
speeches  of  ordinary  advocates,  but  where  it  is  judi- 
ciously employed  against  an  advocate  who  has  none, 
the  result  will  scarcely  be  doubtful,  other  chances  be- 
ing equal. 

§  42.  Misstatements  and  False  Representations  by 
Defendant.— The  fact  of  a  reply  looming  in  the  dis- 
tance should  always  be  borne  in  mind.  The  defend- 
ant's attorney  must  anticipate  it  at  every  step,  and 
so  shape  his  own  arguments  that  they  will  receive  as 
little  damage  as  possible  from  the  approaching  simoon. 
A  fallacious  argument  is  bad  enough,  but  it  sometimes 
wins;  a  false  one  is  dangerous  and  generally  fatal.  It 
will  place  the  advocate  in  the  position  of  being  de- 
tected in  an  act  of  deception.  So  will  opening  a  piece 
of  evidence  that  he  cannot  prove,  or  asserting  that 
something  has  not  been  proved  which  in  reality  has 
been.  These  are  blunders  in  advocacy  which  are  con- 
stantly being  made  to  the  detriment  of  clients;  not 
made  from  want  of  practice,  but  for  lack  of  studying 
advocacy  as  an  art.  When  the  advocate  commences 
to  address  the  jury,  they  will  adjust  themselves  to  the 
task  of  listening  as  though  they  were  about  to  be  en- 
tertained with  the  second  act  of  an  amusing  drama. 
They  will  readily  yield  him  their  attention,  and  be 
curious  to  know  what  answer  he  will  make  to  all  that 
has  been  urged  on  the  other  side.  They  may  or  may 
not  believe  all  the  evidence,  but  whether  they  do  or 
not  they  will  accord  the  defendant's  attorney  a  patient 
hearing.  But  the  curiosity  of  the  jury  may  be  quickly 
gratified.  The  defendant's  attorney  may  lose  their 
attention  and  his  case  by  a  few  sentences,  or  by  hob- 
bling along  as  though  he  were  doing  penance  for  his 
client. 


68  AMERICAN     ADVOCACY. 

§  43.  Arrangement  of  Facts  with  Regard  to  Proba- 
bilities.—Having  disposed  of  the  weaker  points  of  his 
opponent's  case  and  attacked  the  strong  ones  by 
well  arranged  argument,  the  next  duty  of  defendant's 
attorney  will  be  to  present  his  own  facts,  and  in  doing 
this  the  great  rule  to  observe  is  to  arrange  them  with 
due  regard  to  probabilities.  This  is  not  always  done;  it 
is  sometimes  not  even  thought  of.  The  same  facts 
may  be  so  ill-arranged  that  collateral  circumstances 
(never  to  be  lost  sight  of,  although  irrelevant  as  evi- 
dence), may  raise  the  strongest  improbabilities  against 
the  defendant.  On  the  other  hand,  by  a  skillful  ar- 
rangement the  opposite  result  will  be  produced.  The 
effect  of  not  observing  this  rule  will  be  like  the  false 
perspective  in  a  well-known  picture,  where  a  wagon  is 
on  one  side  of  a  bridge,  the  team  on  the  other,  and 
the  carter  driving  them  about  half-a-mile  off. 

§  44.  Proper  and  Artistic  Arrangement  of  Evidence. 
—A  great  deal  will  depend  upon  an  artistic  ar- 
rangement of  defendant's  evidence  at  this  stage;  so 
that  it  may  not  only  stand  out  in  the  best  light,  but 
be  so  placed  that  its  position  may  cast  his  opponent's 
as  much  as  possible  into  the  shade.  As  before  observed, 
contrast  plays  a  great  part  in  advocacy.  But  mere 
naked  contrast  is  not  all  that  an  attorney  can  make  of 
his  facts  if  they  are  in  contradiction  to  those  of  his 
opponent.  He  will  have  but  half  learned  his  art  if 
he  rests  here.  He  should  contrast  the  opposing  facts 
as  forcibly  as  he  can,  but  so  place  them  that  his  own 
will  appear  to  be  the  more  natural  when  regarded  in 
connection  with  surrounding  circumstances.  The  next 
thing  for  the  defendant  to  do  is  to  introduce  his  evi- 
dence ivith  a  view  to  effect.1 

i  Take  an  illustration  (if  not  too  humble)  from  a  well-arranged 
<$hop  window,  where  many  costly  articles  are  exhibited.  The  ar- 


PREPARATION  FOR  TRIAL.  69 

§  45.  Answering  Exaggerated  or  Improbable  Evi- 
dence.—When  defendant's  attorney  has  to  deal  with 
evidence  which  is  eccentric  or  absurdly  exaggerated, 
he  need  not  labor  as  though  it  were  worthy  of  the 
gravest  consideration,  but  simply  point  out  its  gro- 
tesqueness,  as  though  the  matter  were  worthy  of 
notice  on  that  account  only.  If  a  witness  has  sworn 
something  contrary  to  all  human  experience,  the  ad- 
vocate need  not  weary  the  jury  by  arguing  that  such 
evidence  is  unreliable.  It  is  when  he  approaches  facts 
within  the  range  of  probability,  and  deposed  to  by 
trustworthy  witnesses,  that  his  powers  of  argument 
will  be  put  to  the  test.  Probabilities  must  here  be  re- 
lied upon,  and  the  smallest  circumstance  will  often 
prove  of  the  greatest  importance.  The  case  will  re- 
semble a  puzzle  composed  of  a  number  of  pieces  which 
fit  into  one  another.  If  there  were  duplicates  of  some 
which  did  not  belong  to  it,  one  would  examine  the 
edges,  the  color  and  the  grain  of  the  wood,  in  order 
to  detect  the  true  from  the  false.  In  like  manner  the 
defendant's  attorney  must  deal  with  the  facts  of  his 
opponent's  case  where  they  conflict  with  his,  and  yet 
seem  to  fit  in  with  surrounding  circumstances. 

§  46.  Effect  of  Defendant  Praising  His  Own  Wit- 
nesses.—If  the  defendant's  witnesses  are  respecta- 

rangement  is  a  matter  of  art  and  study;  mere  practice  would  not 
produce  its  effect.  It  pleases,  and  one  scarcely  knows  why.  It  is 
because  no  one  thing  offends  the  eye  by  obtruding  itself  upon  one's 
notice.  The  harmony  produced  by  the  artistic  arrangement  is  such 
that  the  leading  objects  attract  attention  without  appearing  to  do 
so,  and  are  set  off  by  the  surrounding  articles.  There  is  no  crowd- 
Ing,  and  everything  is  displayed.  If  the  defendant's  attorney  can 
as  artistically  arrange  his  evidence  in  his  speech,  it  will  produce 
an  effect  that  will  not  be  easily  removed.  The  very  "setting  out" 
of  his  case  may  win  it. 


70  AMERICAN     ADVOCACY. 

ble,  his  attorney  need  not  detract  from  their  respecta- 
bility by  over-proclaiming  it.  The  jury  will  believe 
the  witnesses  to  be  ordinarily  respectable  unless  the 
advocate  take  overmuch  pains  to  convince  them  of  it. 
It  is  only  counterfeit  character,  like  counterfeit 
beauty,  that  requires  a  good  deal  of  touching  up. 
When  a  good  witness  is  cross-examined  as  to  charac- 
ter, it  is  as  good  as  vouched  for  by  the  other  side.  If 
one  saw  a  man  being  led  down  Fleet  street  by  another 
who  kept  shouting,  "Here's  an  honest  man!  Look  at 
this  honest  man!"  he  would  suspect  the  pair  of  some 
roguish  design  upon  his  credulity.  The  worst  recom- 
mendation a  man  can  have  is  too  much  praise,  and 
there  is  no  worse  advocacy  than  making  a  person  im- 
possibly good. 

§  47.  Points  of  Rhetoric  to  Be  Observed  by  Defend- 
ant's Attorney.— The  advocate  should  avoid  parenthe- 
ses as  much  as  possible;  but  if  he  employ  one,  let  it 
be  for  the  purpose  of  emphasis.  It  requires  some  skill 
(not  so  much  the  skill  that  comes  of  practice,  but  that 
which  is  produced  by  careful  study)  to  do  this  effect- 
ively. If  done  well,  his  parenthesis  will  stand  out 
like  the  principal  object  of  a  brilliant  pyrotechnic  dis- 
play; but  if  ill-performed,  it  will  be  more  like  a  damp 
centerpiece,  which  becomes  a  failure  and  the  darkest 
spot  of  all. 

The  best  worded  sentence  he  can  form  should  end 
the  speech  of  the  defendant's  attorney.  A  pleasant 
rhetorical  flourish  is  always  acceptable,  while  a  well- 
constructed  peroration  has  many  redeeming  qualities 
It  will  smooth  over  many  a  rugged  point  that  has 
discovered  itself  during  the  progress  of.  his  speech, 
and  hearers  often  persuade  themselves  that  that  is  a 
good  address  which  ends  well.  Nor  should  it  be  for- 


OPENING   PLAINTIFF'S    CASE.  71 

gotten  that  speaking  does  not  consist  in  mere  words; 
the  effect  produced  on  the  inind  by  a  piece  of  real 
oratory  is  a  succession  of  images.  Men  do  not  hear 
a  great  speech  so  much  as  they  see  and  feel  it. 

It  is  not  meant  that  a  jury  should  be  artificially  or 
hysterically  excited,  but  that,  by  a  proper  employment 
of  art,  the  advocate  should  cause  them,  not  merely  to 
hear  what  he  says,  but  to  perceive  the  picture  passing 
through  his  own  mind,  and  to  be  quickened  with  the 
impulse  of  his  own  sensations.  This  is  the  art  of 
opening  the  defendant's  case.  If  effectively  per- 
formed, the  latter 's  attorney  need  not  fear  the  reply, 
although  he  will  utter  no  syllable  without  a  thoughtful 
regard  to  it. 


CHAPTER  V. 


EXAMINATION  IN  CHIEF. 


§  48.  All  of  the  Facts   Must  be 
Elicited. 

49.  The  Fewest  Possible  Ques- 

tions and  Interruptions. 

50.  Proper       and        Improper 

Questions. 

51.  Irritable    and    Unintelligi- 

ble Questioning. 

52.  Order   of   Time    to  be    Ob- 

served in  Eliciting  Evi- 
dence. 


§  53.  Cross-Examining       One's 
Own  Witness. 

54.  Cautioning     Witnesses 

About     Rules     of     Evi- 
dence. 

55.  Leading  a  Witness. 

56.  Unnecessary  Rapidity   and 

Repetition. 

57.  Verbose    Questions    to    be 

Avoided. 


§  48.  All  of  the  Facts  Must  Be  Elicited. -One  of  the 
most  important  branches  of  advocacy  is  the  examina- 
tion of  a  witness  in  chief.  One  fact  should  be  remem- 
bered to  start  with,  and  it  is  this:  the  witness  whom 
an  advocate  has  to  examine  has  probably  a  plain, 
straightforward  story  to  tell,  and  that  upon  the  telling 
it  depends  the  belief  or  disbelief  of  the  jury,  and  their 
consequent  verdict.  If  it  were  to  be  told  amid  a  social 
circle  of  friends  it  would  be  narrated  with  more  or 
less  circumlocution  and  considerable  exactness.  But 
all  the  facts  would  come  out;  and  that  is  the  first  thing 
to  insure  if  the  case  be  an  honest  one.  It  has  some- 
times occurred  that  half  a  story  is  told,  and  that  the 
worst  half,  too,  the  rest  having  to  be  got  out  by  the 
attorney  in  re-examination,  if  he  have  the  opportunity. 
Events  follow  one  another  in  a  natural  course ;  and  as 


EXAMINATION    IN   CHIEF.  7J 

one  is  often  the  cause  and  another  the  effect,  the  most 
important  results  may  depend  upon  the  merest  trifle.1 

§  49.  The  Fewest  Possible  Questions  and  Interrup- 
tions.—»Now,  the  best  thing  the  advocate  can  do,  on 
examination-in-chief,  is  to  remember  that  the  witness 
has  something  to  tell,  and  that  but  for  him,  the  advo- 
cate, would  probably  tell  it  very  well,  "in  his  own 
way."  The  fewer  interruptions,  therefore,  the  better; 
and  the  feiver  questions,  the  less  questions  will  be 
needed.  Watching  should  be  the  chief  work;  especi- 
ally to  see  that  the  story  be  not  confused  with  extra- 
neous and  irrelevant  matter.  The  chief  error  the 
witness  will  be  likely  to  fall  into  will  be  hearsay  evi- 
dence, either  he  says  to  somebody,  or  somebody  says 
to  him  something  which  is  inadmissible  and  delays 
the  progress  of  events-  But  the  witness  being  very 
nervous,  the  attorney  must  be  careful  how  he  checks 
the  progress  of  his  "he  says  says  he's,"  or  he  may 
turn  off  the  stream  altogether.  The  advocate  should 
pass  him  over  those  parts  as  though  he  were  franking 
him  through  a  turnstile,  and  then  show  him  where  he 
is ;  or  as  if  he  were  putting  a  blind  man  with  his  face 

1  Take  the  familiar  "running-down  case."  Two  vehicles  come 
into  collision,  and  the  respective  drivers  no  less  so  in  their  evi- 
dence. Each  throws  the  blame  on  the  other,  and  if  both  were  be- 
lieved, there  could  have  been  no  accident  at  all,  because  each 
would  have  been  upon  his  proper  side  of  the  road  close  to  the  curb, 
with  the  whole  width  of  the  road  between  them.  They  cannot, 
therefore,  both  be  accurate.  Other  witnesses  give  other  impossible 
stories.  The  very  position  of  the  vehicles  after  the  accident  may 
be  a  disputed  point,  and,  therefore,  no  assistance  to  the  jury.  But 
there  may  be  a  very  trifling  scratch  or  indentation  on  a  wheel  or  a 
shaft  which  may  be  all-important;  and  what  it  was  produced  by 
may  be  more  important  still.  Its  direction  and  shape  may  also  be 
material.  This  will  show  how  necessary  it  is  in  examination-in- 
chief  to  get  out  every  fact,  however  trifling,  that  may  be  of  impor- 
tance to  the  examiner's  case. 


74  AMERICAN     ADVOCACY. 

in  the  direction  he  wished  to  go,  and  then  left  him  to 
feel  his  way  alone.  As  far  as  possible,  the  witness 
should  be  permitted  to  tell  his  own  story,  with  as 
little  interruption  from  the  advocate  as  possibJe,  and 
in  all  probability  he  will  tell  it  well  enough  if  the 
examiner  does  not  confuse  -him  with  his  brief.  If  the 
examiner  find  that  witness  is  omitting  a  material 
point,  his  duty  will  be  to  bring  him  to  it  at  once. 
Sometimes,  however,  in  the  midst  of  an  important 
answer  a  witness  is  very  often  interrupted  by  a  frivol- 
ous question  upon  something  utterly  immaterial.  This 
seems  so  absurd  on  paper  that  it  needs  an  example. 
A  witness  is  giving  an  answer  when  some  such  ques- 
tion as  this  is  interposed:  "What  time  was  this?" 
or,  ' '  Had  you  seen  Mr.  Smith  before  this  ? "  A  ques- 
tion is  often  left  half  answered  by  such  interruptions, 
the  better  half  perhaps  being  untold.  "He  never 
asked  me  about  that,"  says  the  witness  after  the  case 
is  over;  or,  "I  could  have  explained  that  if  he  had  let 
me. ' '  If  the  question  be  material,  by  all  means  let  the 
answer  be  taken  down;  if  immaterial,  it  ought  not  to 
have  been  asked;  but  once  asked,  the  examiner  had 
better  have  the  answer,  lest  something  should  be  in- 
ferred against  him.  All  unnecessary  interruptions 
produce  confusion  in  the  mind  of  the  witness  and  jury, 
and  tend  to  the  damage  of  the  advocate's  case. 

§  50.  Proper  and  Improper  Questions.— The  most 
useful  questions  for  eliciting  facts  are  the  most  com- 
mon-place. "What  took  place  next?"  being  infinitely 
better  than  putting  a  question  from  the  narrative  in 
the  examiner's  brief  of  the  facts,  which  leads  the  wit- 
ness to  contradict  him.  The  interrogative  "Yes?" 
as  it  asks  nothing,  and  yet  everything  is  better  than 
a  rigmarole  phrase,  such  as,  "Do  you  remember  what 


EXAMINATION    IN   CHIEF.  75 

the  defendant  did  or  said  upon  that?"  The  witness 
after  such  a  question  is  generally  puzzled,  as  if  the 
examiner  were  asking  him  a  conundrum  which  is  to 
be  passed  on  to  the  next  person  after  he  has  given  it 
up.  Judges  frequently  rebuke  lawyers  for  putting  a 
question  in  this  form:  "Do  you  remember  the  29th  of 
February  last?"  In  the  first  place,  it  is  not  the  day 
that  has  to  be  remembered  at  all,  and  whether  the 
witness  recollects  it  or  not  is  immaterial.  It  is  gen- 
erally the  facts  that  took  place  about  that  time  he 
wants  deposed  to,  and  if  the  date  is  at  all  material,  he 
is  putting  the  question  in  the  worst  possible  form  to 
get  it.1  Many  a  good  case  has  been  lost — and  many 
more  will  be — by  clumsy  questions  of  this  kind  at  the 
commencement  of  a  witness'  examination.  If  the  ex- 
aminer leave  the  latter 's  mind  in  a  state  of  bewilder- 
ment and  confusion,  his  work  will  only  need  to  be 
followed  up  by  a  well-delivered  question  or  two  in 
cro^s-examination  to  demolish  the  whole  of  his  evi- 
dence. 

§  51.  Irritable  and  Unintelligible  Questioning.— It 
may  seem  unnecessary  to  observe  that  no  sign  of 
irritability  should  be  manifested  towards  the  witness. 
If  he  be  stupid  the  examiner's  vexation  will  by  no 
means  assist  him,  nor  will  a  sharp  rebuke,  such  as 
one  too  often  hears  administered.  The  more  stupid 

1  Suppose  a  lawyer  ask  a  witness  if  he  remembers  the  10th  of 
June,  1874;  he  probably  does  not,  and  both  he  and  the  advocate 
are  bewildered,  and  think  they  are  at  cross-purposes;  but  let  the 
lawyer  ask  him  if  he  was  at  Niagara  Falls  that  year,  and  he  will  get 
the  answer  without  hesitation;  let  him  inquire  when  it  was,  and 
the  witness  will  tell  him  the  10th  of  June.  In  this  way  the  examiner 
will  avoid  taxing  a  witness'  memory;  always  a  dangerous  pro- 
ceeding, and  much  more  within  the  province  of  cross-examination 
than  examination-in-chief. 


76  AMERICAN     ADVOCACY. 

he,  the  more  patient  should  be  the  advocate  be.  A  stick 
is  a  bad  thing  to  help  a  lame  dog  over  a  stile  with, 
and  further,  the  stupidity  is  not  always  on  the  side 
of  the  witness.  Every  question  should  not  only  be 
intelligible  and  relevant  in  itself,  but  it  should  be  put 
in  such  a  form  that  its  relevancy  to  the  case  may  be 
apparent  to  him.  A  question,  without  being  leading, 
should  be  a  reminder  of  events  rather  than  a  test  of 
the  witness'  recollection.1 

§  52.  Order  of  Time  to  Be  Observed  in  Eliciting 
Evidence.— It  is  a  cardinal  rule  in  examination-in- 
chief,  that  in  examining  a  witness  the  order  of  time 

i  The  following  is  an  instance:  A  man  brings  an  action  against 
a  railway  company  for  false  imprisonment.  The  facts  are  these: 
He  lost  his  ticket  and  refused  to  pay;  the  porter  on  the  platform 
called  the  inspector,  who  sent  for  a  policeman,  and  then  gave  him 
into  custody.  The  best  way  not  to  get  the  facts  out  is  to  examine 
him  in  the  following  manner:  "Were  you  asked  for  your  ticket? — 
Yes."  "Did  you  produce  it? — No."  "Why  not? — I  had  lost  it." 
"Are  you  sure  you  took  it? — Quite."  "Positive?  (This  is  a  food 
opening  for  the  wedge  of  cross-examination — a  doubt  thrown  on 
the  lawyer's  own  witness.) — I  am  quite  sure."  "What  did  the 
defendants  say  then;  I  mean  the  porter?"  (This  blunder  ought 
not  to  have  been  made.)  At  this  point  the  witness  is  in  a  hopeless 
muddle,  and  says: — "I  was  given  into  custody." 

The  story  is  not  half  told,  although  it  is  one  of  the  simplest  to 
tell.  Now  the  counsel  contradicts,  by  way  of  explanation,  and  says: 
"No,  no;  do  attend."  Witness  strokes  his  chin  as  though  about  to 
be  shaved.  Judge  glances  at  him,  and  wonders  if  he  is  lying. 
Counsel  for  the  defendants  (sure  to  be  eminent)  smile,  and  the 
jury  look  knowingly  at  one  another,  and  begin  to  think  it  a 
trumped-up  attorney's  action. 

Now,  start  again  with  another  question:— "When  the  train 
stopped,  you  got  out? — I  didn't  get  out  afore  it  stopped,  sir."  "Did 
anyone  ask  you  for  your  ticket? — They  did;"  emphatically,  as 
though  he  knows  now  where  he  is.  "Who? — I  am  sure  I  don't 
know  who  he  is;  never  saw  the  man  before  in  my  life."  "Well, 
well,  did  he  do  anything?— No,  sir;  he  didn't  do  nothing  as  I  know 
of;"  evidently  puzzled,  as  if  he  had  forgotten  some  important  event 
upon  which  the  whole  case  turns. 


EXAMINATION    IN   CHIEF.  77 

ought  always  to  be  observed.  While  a  witness  is  tell- 
ing his  story  in  a  natural  manner  (which  he  will  gen- 
erally do  if  left  to  himself,  and  with  due  attention  to 
the  order  of  time),  counsel  suddenly  breaks  in  with 
some  such  observation  as  this:  "One  moment, — • 
What  was  said  when  you  spoke  to  the  defendant?" 
The  thread  of  the  story  is  immediately  broken,  the 
judge  is  angry,  and  the  mind  of  the  jury  is  prevented 
from  following  the  course  of  the  narrative.  If  the 
question  be  of  importance  the  judge's  notes  must  be 
altered,  and  probably  will  be  confused. 

Besides  this,  the  breach  of  this  rule  tends  to  multi- 
ply itself.  The  question  having  been  interposed  at 
the  wrong  time,  the  judge  asks:  ".When  was  that 
•said?"  The  witness  becomes  confused,  tries  to  recol- 
lect, and  very  likely  puts  it  in  the  wrong  place  after 
all,  is  reminded  that  that  cannot  be,  is  ordered  to 
recollect  himself  and  be  careful,  and  so  on,  to  the  con- 
fusion of  everybody  except  the  opposing  counsel,  into 
whose  hands  the  inexperienced  examiner  is  playing. 
It  shows  the  necessity  of  every  event  being  placed  in 
its  natural  order,  and  of  every  material  circumstance 
and  conversation  accompanying  that  event  being 
given  in  connection  with  it,  so  that  everything  is  ex- 
hausted as  the  story  proceeds.  If  this  be  not  done  the 
client  had  better  have  been  without  the  lawyer's 
services.  Let,  therefore,  the  events  be  told  in  the  order 
in  which  they  occurred,  with  the  accompanying  con- 
versations, if  important  and  admissible,  and  their 
minor  incidents  if  material. 

$  53.  Cross-Examining  One's  Own  Witness.— An- 
other rule  to  observe  is  this:  An  advocate  should  never 
cross-examine  his  own  witness.  This  again,  seems 
remarkably  obvious.  But  it  requires  an  effort  to 


78  AMERICAN     ADVOCACY. 

obey  it  nevertheless.1  It  is  no  part  of  an  advocate's 
duty  to  shake  his  witness'  testimony  to  pieces  if  he 
believes  it  to  have  been  honestly  given.  Nay,  more. 
A  cross-examination  of  one's  own  witness  may  most 
unjustly  bring  about  a  disastrous  result.  A  witness 
may  get  confused,  and,  although,  at  first  might  feel 
absolutely  positive,  and  be  justly  positive,  yet  by  per- 
petually harassing  him,  he  may  begin  to  doubt  whether 
he  is  positive  or  not,  and  leave  an  impression  that  he 
is  doubtful.  Such  questions  as:  "Are  you  quite  sure, 
now?  Are  you  certain?"  are  cross-examination,  and 
do  not  fall  properly  within  the  scope  of  examination- 
in-chief.  "Are  you  quite  sure  you  have  the  money 
in  your  hand?"  would  be  certain  to  raise  a  doubt  in 
the  mind  as  if  a  conjurer  had  asked  the  question. 

§  54.  Cautioning  Witnesses  about  Rules  of  Evidence. 
— Another  fault  of  too  frequent  occurrence  is  the  repe- 
tition of  the  phrases :  "You  must  not  tell  us  what  was 
said,  but  what  was  done."  "Did  he  say  anything  to 
you?  Don't  tell  us  what  it  was."  The  jury,  who 
know  very  little  of  the  rules  of  evidence,  must  some- 
times think  from  the  tone  as  well  as  the  language  that 
the  counsel  is  afraid  of  something  being  told  that 


1  Before  Mr.  Justice  Hawkins,  an  English  jurist,  a  young  lawyer 
was  conducting  a  case,  which  seemed  pretty  clear  upon  the  bare 
statement  of  the  prosecuting  witness.  But  the  latter  was  asked: 
"Are  you  sure  of  so  and  so?"  "Yes,"  said  the  witness.  "Quite?" 
inquired  the  counsel.  "Quite,"  said  the  witness.  "You  have  no 
doubt?"  persisted  the  counsel.  "Well,"  answered  the  witness,  "I 
haven't  much  doubt,  because  I  asked  my  wife." 

Mr.  Justice  Hawkins:  "You  asked  your  wife  in  order  to  be  sure 
in  your  own  mind?"  "Quite  so,  my  lord."  "Then,  you  had  some 
doubt  before?"  "Well,  I  may  have  had  a  little,  my  lord." 

This  ended  the  case,  because  the  whole  question  turned  upon 
the  absolute  certainty  of  this  witness'  mind. 


EXAMINATION    IN   CHIEF.  79 

would  be  adverse  to  his  case,  and  must  wonder  at  an 
advocate  who  asks  if  somebody  said  something,  but 
anxiously  cautions  the  witness  not  to  tell  what  it  was. 
It  may  be  said  the  caution  was  necessary;  so  it  might 
be,  but  need  not  be  made  the  prominent  feature  in  the 
examination.  There  need  not  be  a  fuss  about  it,  as 
though  the  attorney  wanted  to  impress  the  world  with 
his  vast  knowledge  of  the  rules  of  evidence.  In  ninety- 
nine  cases  out  of  a  hundred,  it  is  obvious  that  some- 
thing was  said;  the  fact  will  not  be  disputed,  and  a 
leading  question  will  pass  the  witness  over  the  diffi- 
culty, and  not  confuse,  his  mind  by  sending  it  upon  an 
inquiry  as  to  why  he  must  not  give  the  conversation. 

§  55.  Leading  a  Witness.— Leading  a  witness  in 
material  matters  is  a  blunder  which  is  not  likely  to 
be  permitted  by  the  examiner's  opponent;  but  if  he 
do  allow  it,  it  is  generally  to  the  examiner's  disad- 
vantage. Evidence  that  is  given  in  answer  to  leading 
questions  is  of  the  weakest  character.  The  mere 
answers  of  a  witness  are  nothing;  it  is  the  effect  they 
have  that  makes  them  valuable  or  otherwise,  and  a 
jury  always  distrusts  evidence  which  comes  rather 
from  the  mouth  of  the  counsel  than  that  of  the  wit- 
ness. As  a  matter  of  policy,  therefore,  apart  from 
the  violation  of  the  rules  of  advocacy  or  of  the  prac- 
tice of  the  courts,  leading  questions  upon  material 
matters  should  be  carefully  avoided. 

But  although  it'  is  by  far  the  best  to  let  a  witness 
tell  his  story  in  his  own  way  as  much  as  possible,  it 
is  absolutely  necessary  to  prevent  him  from  rambling 
into  irrelevant  matter.  Most  uneducated  witnesses 
begin  a  story  with  some  utterly  irrelevant  observa- 
tion, such  as,  if  they  are  going  to  tell  what  took  place 
at  a  fire,  they  will  say,  "I  was  just  fastening  up  my 


80  AMERICAN     ADVOCACY. 

back  door  when  I  heard  a  shout."  Witness  should 
be  led  as  quickly  as  possible  back  to  the  fire,  and  the 
evidence  will  come  with  little  trouble. 

§  56.  Unnecessary  Rapidity  and  Repetition.— There 
is  nothing  more  common  with  beginners  than  going 
too  fast.  They  are  frequently  told  by  the  judge  that 
they  forget  he  has  to  take  down  the  answers;  and 
the  importance  of  an  advocate's  evidence  looking  well 
on  the  judge's  notes  cannot  be  exaggerated  when  he  is 
supporting  or  showing  cause  against  a  rule  for  a  new 
trial.  When  the  evidence  is  coming  well,  there  is  no 
doubt  a  great  temptation  to  let  it  run  too  fast,  but  the 
examiner  must  take  care  it  does  its  proper  work,  other- 
wise it  will  be  like  a  rush  of  water  which  shoots  over 
the  mill-wheel  instead  of  turning  it. 

Unless  there  be  a  doubt  as  to  what  an  answer  was, 
the  examiner  must  not  require  it  to  be  given  twice. 
"Let  well  alone."  There  is  also  danger  of  a  witness 
varying  his  answer  unconsciously  if  he  is  asked  again 
and  again. 

§  57.  Verbose  Questions  to  Be  Avoided.— Whenever 
an  advocate's  question  is  too  long  the  answer  will 
be  worthless.  "Will  you  be  kind  enough  to  tell  us 
what  took  place  between  the  parties  with  reference 
to  the  agreement  that  was  then  entered  into  between 
them!"  This  is  an  instance  of  verbosity,  which  shows 
that  in  putting  questions,  long-drawn  sentences  should 
be  avoided.  The  more  neatly  a  question  is  put  the  bet- 
ter, as  it  has  to  be  understood  not  only  by  the  witness 
but  by  the  jury.  All  that  was  necessary  to  be  asked 
might  have  been  put  in  two  questions:  "Was  an 
agreement  entered  into  between  the  parties  and  the 
plaintiff?"  "What  was  it!"  To  frame  a  question 


EXAMINATION    IN   CHIEF.  81 

well  is  a  most  important  matter;  and  this  can  only 
be  done  by  careful  study.  Practice  alone  is  not  enough, 
and,  indeed,  will  do  very  little  toward  effecting  this 
object;  it  is  more  likely  to  confirm  tendencies  to  ver- 
bosity than  to  diminish  them.  I  am  speaking  now  of 
the  length  of  questions,  and  not  of  the  mode  of  put- 
ting them.  It  is  a  very  little  fault  to  be  slow  in  this 
particular,  provided  they  are  put  well  and  tersely. 


CHAPTER  VI. 


CROSS-EXAMINATION. 


§  58.  Knowledge  of  Human  Na- 
ture. 

59.  Dangers     of     Cross-Exam- 

ination. 

60.  Good  Temper  of  the  Cross- 

Examiner. 

61.  Prejudice   and   Other   Hos- 

tile Motives  of  Witness 
to  be  Emphasized  on 
Cross-Examination. 


§  62.  Manner,  Style  and  Tone  of 
Voice. 

63.  Asking  Questions  Liable  to 

Call  Forth  Adverse  Re- 
plies. 

64.  Cross-Examination  of  Eva- 

sive   and    Hostile    Wit- 
nesses. 

65.  Some     Miscellaneous      Ob- 

servations. 

66.  In  Conclusion. 


§  58.  Knowledge  of  Human  Nature.— Next  to  ex- 
amination-in-chief,  nothing  is  more  important  or  diffi- 
cult in  advocacy  than  cross-examination.1  Cross-ex- 

1  "The  system  is  as  old  as  the  history  of  nations.  Indeed,  in 
this  day,  the  account  given  by  Plato  of  Socrates'  cross-examination 
of  his  accuser,  Miletus,  while  defending  himself  against  the  capital 
charge  of  corrupting  the  youth  of  Athens,  may  be  quoted  as  a 
masterpiece  in  the  art  of  cross-questioning. 

Cross-examination  is  generally  considered  to  be  the  most  difficult 
branch  of  the  multifarious  duties  of  the  advocate.  Success  in  the 
art,  as  someone  has  said,  comes  more  often  to  the  happy  possessor 
of  a  genius  for  it.  Great  lawyers  have  often  failed  lamentably  in 
it,  while  marvelous  success  has  crowned  the  efforts  of  those  who 
might  otherwise  have  been  regarded  as  of  a  mediocre  grade  in  the 
profession.  Yet  personal  experience  and  the  emulation  of  others 
trained  in  the  art  are  the  surest  means  of  obtaining  proficiency  in 
this  all-important  prerequisite  of  a  competent  trial  lawyer.  It  re- 
quires the  greatest  ingenuity;  a  habit  of  logical  thought;  clearness 


CROSS-EXAMINATION.  83 

amination  may  almost  be  regarded  as  a  mental  duel 
between  advocate  and  witness.  The  first  requisite, 
therefore,  on  the  part  of  the  attacking  party  (namely, 
the  advocate)  is  a  knowledge  of  human  character. 
This  is  the  first  requisite,  and  it  is  an  indispensable 
one.  Since  almost  everybody  conceives  himself  to 
be  a  master  of  this  science,  and  since,  if  he  be  not,  it 
is  impossible  by  any  means  at  our  disposal  to  add  to 
his  knowledge  in  that  respect,  we  shall  proceed  on 
the  assumption  that  the  reader  will  appreciate  many 
observations  which  would  not  be  quite  intelligible  were 
he  ignorant  of  this  profoundest  of  all  learning. 

Assuming,  then,  that  the  cross-examiner  has  some 
knowledge  of  human  nature,  he  should  be  able  to 
divine,  while  the  witness  is  being  examined  in  chief, 
the  kind  of  man  he  will  have  to  deal  with.  He  should 
determine  whether  he  has  learned  his  story  by  heart ; 
if  so,  it  is  probably  not  all  true,  especially  if  it  be  a 
long  and  intricate  one.  This,  however,  is  by  no  means 
an  unerring  test.  It  may  be  true,  nevertheless.  Many 
policemen  learn  their  evidence  and  give  it  off  verba- 
tim; yet  it  is  more  often  than  not  substantially  true. 
But  the  advocate  will  gather  from  the  witness'  man- 
ner, his  mode  of  answering,  his  looks,  tone,  language, 
gestures,  even  his  very  glances,  whether  he  be  a  false 
witness  or  one  who  is  telling  a  story  partly  true  and 
partly  false,  the  most  difficult  of  all  witnesses  to  deal 
with. 


of  perception  in  general;  infinite  patience  and  self-control;  power 
to  read  men's  minds  intuitively,  to  judge  of  their  characters  by 
their  faces,  to  appreciate  their  motives;  ability  to  act  with  force 
and  precision,  a  masterful  knowledge  of  the  subject-matter  itself; 
an  extreme  caution;  and,  above  all,  the  instinct  to  discover  the 
weak  point  in  the  witness  under  examination."  Wellman's  Art  of 
Cross-Examination,  p.  24. 


84  AMERICAN     ADVOCACY. 

§  59.  Dangers  of  Cross-Examination.— Next  to  ex 
amination-in-cliief  nothing-  is  more  important  or  diffi 
cult  in  advocacy  than  cross-examination.  It  is  in- 
finitely the  most  dangerous  branch,  inasmuch  as  its  er- 
rors are  most  always  irremediable.  Cross-examina- 
tion has  been  likened  to  a  two-edged  sword,  but  it  is 
infinitely  more  dangerous  than  that.  It  is  more  like 
some  terrible  piece  of  machinery — a  threshing  ma- 
chine, for  instance — into  which  an  unskillful  advocate 
is  more  likely  to  throw  his  own  case  than  his  oppo- 
nent's. 

The  dangers  of  cross-examination,  it  may  be  ob 
served,  are  so  subtle  that  they  lurk  around  the  ques- 
tions of  the  most  skillful.  These  are  like  the  marsh 
exhalations — invisible,  but  destructive.  A  mistake  in 
cross-examination  may  be  fatal  to  a  lawyer's  case.  A 
single  question  may  make  an  opening  for  a  flood  of 
evidence  which  may  overwhelm  him.1  Suppose  a  con- 
versation to  have  taken  place  which  is  not  admissible 
as  evidence-in-chief,  but  which,  if  admitted,  may  have 
the  effect  of  prejudicing  the  jury,  or  of  introducing 
matter  otherwise  irrelevant,  but  which,  nevertheless, 
may  in  some  degree  influence  their  minds,  it  would  be 


i  It  happened  in  a  certain  English  case  (which  was  tried  before 
Mr.  Justice  Denman)  that  the  plaintiff  had  either  kept  no  account 
books  or  had  lost  them.  He  depended  upon  his  memory  for  the 
particulars  of  various  sums  said  to  have  been  lent  and  for  the 
dates,  which  were  not  only  at  wide  intervals,  but  also,  many  of 
them,  long  ago.  In  examination-in-chief,  he  was  asked  if  he  had 
an  account.  He  said  yes.  Made  when?  Some  time  ago.  How 
made?  From  memoranda  which  were  not  in  court.  The  account, 
therefore,  was  objected  to.  Now,  it  was  quite  possible,  if  that 
account  had  been  placed  before  the  jury,  it  might  have  wrongly 
influenced  their  minds,  and  it  was  right  to  shut  it  out.  The  plain- 
tiff was  thrown,  therefore,  upon  the  resources  cf  his  memory,  and 


CROSS-EXAMINATION.  §5 

the  height  of  folly  to  put  a  question  which  would  admit 
it  in  re-examination. 

Another  danger  for  the  cross-examiner  to  avoid  is 
that  of  strengthening  his  opponent's  case  by  eliciting 
answers  that  have  more  effect  upon  the  jury  when  they 
come  by  way  of  cross-examination  than  in  chief.  A 
question  is  sometimes  omitted  fairly  enough,  and  for 
good  reasons,  by  the  counsel  examining  in  chief.  If 
the  cross-examining  counsel  be  inexperienced,  he  will 
probably  rush  in  and  get  the  answer  for  his  opponent. 
The  greater  weight  attaching  to  it  need  scarcely  be 
pointed  out.  Again,  he  may  get  in  a  conversation  that 
may  be  fatal  to  his  case.1  There  is  still  another  dan- 
ger not  to  be  lightly  regarded,  and  that  is  of  persisting 

with  regard  to  two  items,  only,  he  was  tolerably  clear  as  to  the 
dates  and  circumstances. 

In  cross-examination  he  was  asked,  "Have  you  any  account  or 
memorandum  showing  the  several  sums  you  claim?"  He  said, 
"Yes,  it  is  here,"  again  producing  the  copy  of  his  account.  It  was 
again  objected  to.  Question:  "In  what  sums  was  it  advanced?" 
Plaintiff  looked  at  his  document  and  said,  two  sums  of  twenty-five 
pounds  each,  and  (here  he  was  stopped,  as  he  was  reading  from  his 
memorandum).  Plaintiff's  counsel  then  claimed  that  the  document 
was  in  and  could  be  shown  to  the  jury.  Mr.  Justice  Denman  held 
that  it  was  not  in  evidence,  and  that  no  question  had  been  asked 
respecting  its  contents.  It  will  be  seen  from  this — and  one  illustra- 
tion is  perhaps  as  good  as  twenty — that  a  single  question  in  cross 
examination  might  have  made  that  evidence,  which  by  no  possibil 
ity  could  have  been  so  made  by  the  other  side. 

1  Suppose  the  question  to  be  the  contents  of  a  lost  will.  A  leg- 
atee under  it  gives  the  following  evidence:  I  remember  the  fact 
of  the  testator  making  his  will.  I  saw  him  writing  it  and  I  read 
it  at  the  time.  I  was  left  a  thousand  pounds  by  it  and  my  two 
brothers  were  left  severally  the  same  amount.  I  last  saw  the  will 
two  months  ago.  Now,  it  might  be  that  the  whole  case  depended 
upon  the  accuracy  of  the  witness'  memory,  or  upon  that  coupled 
with  his  credibility.  Plaintiff's  counsel  is  desirous  of  showing  that 
on  the  day  the  will  was  made  the  witness  went  for  a  doctor  and 
told  him,  at  that  time,  the  contents  of  the  will.  If  this  statement 


§6  AMERICAN     ADVOCACY. 

in  pressing  a  question  upon  a  reluctant  witness.  When 
you  find  a  witness  unwilling  to  give  the  evidence  you 
seek,  and  you  have  drawn  him  as  near  to  the  point 
as  there  is  any  hope  of  his  being  drawn  or  driven,  it 
is  always  dangerous  to  attempt  to  urge  him  further.  If 
you  have  nearly  got  an  affirmative,  and  you  press  him 
overmuch,  you  may  irritate  him  into  giving  you  a  di- 
rect negative. 

The  dangers  thus  indicated  will  doubtless  suggest 
many  others  to  a  mind  anxious  to  master  the  rudi- 
ments of  advocacy.  They  can  only  be  avoided  by 
careful  study.1 

§  60.  Good  Temper  of  the  Cross-Examiner.— It  will 
be  clear  that,  to  cross-examine  with  anything  like  suc- 
cess, the  most  thorough  good  temper  should  be  pre- 
served. An  ill-tempered  advocate  would  be  some- 

could  be  given,  and  it  were  identical  with  that  made  in  the  witness- 
box  years  after,  it  is  clear  that  it  would  go  a  long  way  to  establish 
the  accuracy  of  the  witness'  memory  as  well  as  his  credibility.  But 
It  is  not  admissible  as  evidence-in-chief.  A  question,  however,  in 
cross-examination  would  admit  every  word. 

Nor  does  the  danger  cease  when  this  witness  leaves  the  box. 
The  doctor,  a  witness  to  the  will,  may  be  called.  He  may  not  have 
read  it,  but  an  inadvertent  question  may  enable  him  to  say  what 
the  last  witness  told  him  on  the  occasion  in  question. 

x  When  to  Keep  Silent  on  Cross-Examination. — A  long  time  ago, 
In  the  East  End  of  London,  lived  a  manufacturer  of  the  name  of 
Waring.  Among  the  many  hands  he  employed  was  a  girl  of  the 
name  of  Harriet  Smith.  Mr.  Waring  fell  in  love  with  her.  Had 
Harriet  known  he  was  married,  in  all  probability  she  would  have 
rejected  his  respectable  attentions.  He  induced  her  to  marry  him, 
but  it  was  to  be  kept  secret;  her  father  was  not  to  know  of  it 
until  such  time  as  suited  Mr.  Waring's  circumstances.  In  the 
course  of  time  there  were  two  children;  and  then,  unfortunately, 
came  a  crisis  in  Mr.  Waring's  affairs.  He  was  bankrupt.  The 
factory  and  warehouse  were  empty,  and  Harriet  was  deprived  of 
her  weekly  allowance. 

One  day  when  Waring  was  in  his  warehouse  wondering,  prob- 
ably, what  would  be  his  next  step,  old  Mr.  Smith,  the  father  of 


CROSS-EXAMINATION.  87 

thing  like  a  gibbing  horse,  he  would  do  everything 
but  go  along  smoothly.  A  calm,  imperturbable  tem- 
per is  the  very  triumph  of  self-command,  and  one  of 
the  most  essential  qualities  of  a  good  advocate.  It  is 
useless  to  make  excuses  for  bad  temper,  as  sensitive- 
ness, indigestion,  disappointment,  or  what  not.  Good 
temper  is  the  demand  of  an  advocate's  client,  and  in 
mere  justice  to  him  a  lawyer  is  bound  to  preserve  it. 
Even  if  he  should  be  a  constitutionally  irritable  man, 
he  must  absolutely  conquer  his  irritability  for  the  time 


Harriet,  called  to  know  what  had  become  of  his  daughter.  "That," 
said  Mr.  Waring,  "is  exactly  what  I  should  like  to  know."  She 
had  left  him,  it  seemed,  for  over  a  year,  and,  as  he  understood, 
was  last  seen  in  Paris. 

She  had  been  gone  nearly  a  year,  and  in  a  few  days  Mr.  Waring 
was  to  surrender  the  premises  to  his  landlord.  There  never  was  a 
man  who  took  things  more  easily  than  Mr.  Waring;  leaving  his 
premises  did  not  disturb  him  in  the  least,  except  that  he  had  a 
couple  of  rather  large  parcels  which  he  wanted  to  get  away  with- 
out anybody  seeing  him.  It  happened  that  a  youth  of  the  name  of 
Davis,  who  had  formerly  been  in  his  employ,  suddenly  met  his  old 
master,  who  greeted  him  with  his  usual  cordiality  and  asked  him 
if  he  had  an  hour  to  spare,  and,  if  so,  would  he  oblige  him  by 
helping  him  to  a  cab  with  a  couple  of  parcels  which  belonged  to 
a  commercial  traveler  and  contained  valuable  samples?  James 
consented  willingly,  and  lighting  each  a  cigar  which  Mr.  Waring 
produced,  they  walked  along,  chatting  about  old  times  and  old 
friends.  When  they  got  to  the  warehouse  there  were  the  two 
parcels  tied  up  in  American  cloth. 

"Here  they  are,"  said  Mr.  Waring,  striking  a  light.  "You  take 
one,  and  I'll  take  the  other;  they're  pretty  heavy,  and  you  must 
be  careful  how  you  handle  them,  or  some  of  the  things  might 
break." 

When  they  got  to  the  curb  of  the  pavement,  Mr.  Waring  said, 
"Stop  here,  and  I'll  fetch  a  four-wheeler." 

While  James  was  waiting,  a  strange  curiosity  to  look  into  the 
parcels  came  over  him;  so  strange  that  it  was  irresistible,  and 
accordingly  he  undid  the  end  of  one  of  them.  Imagine  the  youth's 
horror  when  he  was  confronted  with  a  human  head  that  had  been 
chopped  off  at  the  shoulders!  "My  hair  stood  on  end,"  said  the 


88  AMERICAN     ADVOCACY. 

being.  He  must  never  even  appear  to  lose  his  temper, 
for  no  one  ever  believes  that  a  man  in  the  heat  of  tem- 
per means  what  he  says.  "Allowance"  is  always 
made  for  this  infirmity.  But  when  the  jury  have  rea- 
son to  make  this  allowance  the  chances  are  that  hia 
case  is  gone — in  all  probability  his  client  also. 

§  61.  Prejudice  and  Other  Hostile  Motives  on  the 
Part  of  the  Witness  to  Be  Emphasized  on  the  Cross- 
Examination.— But,  besides  determining  whether  he 

witness,  "and  my  hat  fell  off."  But  his  presence  of  mind  never 
forsook  him.  He  covered  the  ghastly  "relic  of  mortality"  up  and 
stood  like  a  statue  waiting  Mr.  Waring's  return  with  his  cab. 

"Jump  in,  James,"  said  he,  after  they  had  put  the  "samples"  on 
the  top  of  the  cab.  But  James  was  not  in  the  humor  to  get  into 
the  cab.  He  preferred  running  behind.  So  he  ran  behind  all  along 
Whitechapel  road,  over  London  bridge.  By  and  by  the  cab  drew 
up  in  a  back  street  in  front  of  an  empty  house.  James  came  up 
panting  just  as  his  old  master  had  taken  his  first  packet  of  samples 
Into  the  house.  He  had  managed  somehow  or  other  to  get  a  police 
man  to  listen  to  him,  and  Mr.  Waring  was  arrested  and  the  ghastly 
contents  of  the  bundles  discovered.  At  the  police  station  the  divi- 
sional surgeon  pronounced  the  remains  to  be  those  of  a  young 
woman  who  had  been  dead  for  a  considerable  time  and  buried  in 
chloride  of  lime. 

Of  course,  this  was  no  proof  of  murder,  and  the  charge  of  mur- 
der against  Waring  was  not  made  until  a  considerable  time  after — 
not  until  the  old  father  had  declared  time  after  time  that  the 
remains  were  those  of  his  daughter  Harriet. 

Notwithstanding  it  was  clear  that  no  charge  of  murder  could  be 
proved  without  identification,  the  treasury  boldly  made  a  dash  for 
the  capital  charge  in  the  hope  that  something  might  turn  up.  And 
now,  driven  to  their  wit's  end,  old  Mr.  Smith  was  examined  by  one 
of  the  best  advocates  of  the  day,  and  this  is  what  he  made  of  him: 

"You  have  seen  the  remains?" 

"Yes." 

"Whose  do  you  believe  them  to  be?" 

"My  daughter's,  to  the  best  of  my  belief." 

"Why  do  yon  believe  them  to  be  your  daughter's?" 

"By  the  height,  the  color  of  the  hair,  and  the  smallness  of  the 
foot  and  leg." 


CROSS-EXAMINATION.  89 

be  false  or  true,  or  an  artful  twister  of  facts,  the 
cross-examiner  will  also  ascertain  whether  he  has  a 
strong  bias  in  one  direction,  or  a  prejudice  in  the 
other.  If  he  have  a  strong  leaning  to  the  side  of  his 
opponent,  he  will  have  the  less  difficulty  in  disposing 
of  him,  because  it  will  be  easy  to  lead  him  on  until 
his  bias  becomes  so  manifest  and  overpowering  that 
the  jury  will  discount  his  evidence,  and  to  such  an 
extent  that,  if  the  case  depend  upon  him,  they  will 
throw  it  over  altogether.  A  strong  interest  weakens 
the  side  on  which  it  lies.  It  will,  therefore,  be  clear 
that  in  cross-examining  a  witness  of  this  kind  it  will 
be  proper  to  elicit  this  at  the  earliest  opportunity.  If 
it  comes  last  it  will  be  far  weaker,  because  it  will 
not  altogether  undo  the  effect  which  his  evidence  may 

That  was  all;  and  it  was  nothing. 

But  there  must  needs  be  cross-examination  if  you  are  to  satisfy 
your  client.  So  the  defendant's  advocate  asks: 

"Is  there  anything  else  upon  which  your  belief  is  founded?" 

"No,"  hesitatingly  answers  the  old  man,  turning  his  hat  about 
as  if  there  was  some  mystery  in  it. 

There  is  breathless  anxiety  in  the  crowded  court,  for  the  witness 
seemed  to  be  revolving  something  in  his  mind  that  he  did  not  like 
to  bring  out. 

"Yes,"  he  said,  after  a  dead  silence  of  two  or  three  minutes. 
"My  daughter  had  a  scar  on  her  leg." 

There  was  sensation  enough  for  the  drop  scene.  More  cross- 
examination  was  necessary  now  to  get  rid  of  the  business  of  the 
scar,  and  some  re-examination,  too.  The  mark,  it  appeared,  was 
caused  by  Harriet's  having  fallen  into  the  fireplace  when  she  was 
a  girl. 

"Did  you  see  the  mark  on  the  remains?"  asked  the  prisoner's 
counsel. 

"No;  I  did  not  examine  for  it.     I  hadn't  seen  it  for  ten  years." 

This  evidence  proved  to  be  so  very  material  that  when  it  was 
found  on  the  leg  exactly  as  the  old  man  and  a  sister  had  described 
it,  the  doctors  cut  it  out  and  preserved  it  for  production  at  the 
trial.  After  the  discovery,  of  course,  the  result  of  the  trial  was  a 
foregone  conclusion. 


90  AMERICAN     ADVOCACY. 

have  made  upon  the  minds  of  the  jury.  The  interest 
a  witness  has  in  a  case  should,  therefore,  be  shown 
early  in  the  cross-examination,  if  it  has  not  been 
made  manifest  before.  Of  course,  the  advocate's  op- 
ponent will  not  leave  him  this  card  to  play  if  he  can 
avoid  it;  but  he  cannot  help  his  overtrumping  him  by 
placing  it  more  prominently  before  the  jury  than  he 
would  ever  permit  himself  to  do ;  and  this  it  will  be  the 
advocate's  duty  to  accomplish. 

But  it  may  be  the  witness  has  no  interest.  He  may, 
nevertheless,  be  a  partisan;  and  partisanship  is  often 
stronger  than  self-interest,  although  the  latter  has 
somewhat  erroneously  been  described  as  the  most  pow- 
erful principle  influencing  human  actions.  The  advo- 
cate may  take  it  for  granted  that  if  his  opponent  should 
sometimes  anticipate  the  cross-examiner  in  showing 
his  witness'  interest  in  a  cause,  he  will  never  be  eager 
to  acknowledge  him  a  partisan.  The  cross-examiner 
will  therefore  generally  be  left  master  of  the  field  in 
this  respect,  and  at  liberty  to  choose  his  time,  place, 
and  mode  of  attack ;  and  so  that  it  be  early,  he  may  do 
it  as  he  likes.  In  a  great  number  of  cases  there  is 
something  of  partisanship,  and  it  may  be  taken  as  a 
rule  that  an  absolutely  unbiased  witness  is  rare.  The 
strong  partisan,  however,  is  only  produced  by  public 
matters,  religious  disputes,  boundary  questions,  quasi- 
political  inquiries,  medical  cases,  rating  matters,  run- 
ning-down causes,  and  other  investigations,  where  the 
witnesses  seem  naturally  to  take  sides. 

But  suppose  the  witness  has  some  other  motive  in 
giving  his  evidence.    The  cross-examiner  will  endeavor 
to  ascertain  what  it  is.    If  he  watch  carefully  he  will 
find  a  difference  in  tone  and  manner  when  he  is  speak 
•ing  more  directly  from  the  particular  motive.     Sup 


CROSS-EXAMINATION.  91 

pose  it's  revenge?  Any  point  which  seems  more  par- 
ticularly to  damage  his  adversary  will  be  laid  stress 
upon.  Any  answer  that  he  makes  which  he  thinks  will 
damage  him  will  be  uttered  in  a  more  ready  tone  and 
with  evident  satisfaction.  It  will  manifest  itself  in 
his  voice,  in  his  look,  and  his  whole  demeanor.  That, 
therefore,  must  be  stamped  upon  the  mind  of  the  jury 
by  the  advocate's  cross-examination.  But  there  are 
subtle  motives,  by  no  means  apparent  to  every  ob- 
server, which  will,  nevertheless,  be  discovered  if  the 
cross-examiner  set  himself  to  the  task  of  finding  them 
out.  And  whatever  the  motive  be,  there  is  some 
ground-work  for  cross-examination,  except  in  case  of 
the  witness  whose  motive  is  simply  to  speak  the  truth 
as  he  knows  it.  If  this  man's  evidence  does  not  seri- 
ously conflict  with  the  advocate's  case  he  should  let 
him  alone. 

§  62.  Manner,  Style  and  Tone  of  Voice.— With  re- 
spect to  style,  as  before  remarked,  every  man  has  his 
own,  or  should  have.  When  he  borrows  he  may  show 
good  powers  of  imitation,  but  he  lacks  that  which  is 
necessary  to  carry  a  man  to  the  highest  eminence  in 
any  art,  namely,  originality.  With  regard  to  manner, 
a  man  should  imitate  the  best.  The  most  eminent  are 
as  a  rule  the  most  unaffected,  and  the  quiet,  moderate 
manner  is  generally  the  most  effective.  It  ia  not  in 
tended  to  imply  that  bluster  and  a  high  tone  will  not 
sometimes  unnerve  a  timid  witness,  but  this  is  not 
cross-examination  or  true  advocacy.  It  is  not  art, 
but  bullying — not  intellectual  power,  but  mere  physical 
momentum.  Nor  is  it  intended  to  be  conveyed  that 
an  advocate  should  at  all  times  treat  a  witness 
with  the  gentleness  of  a  dove.  Severity  of  tone 
and  manner,  compatible  with  self-respect,  is  frc- 


92  AMERICAN     ADVOCACY. 

quently  necessary  to  keep  a  witness  in  check,  and  to 
draw  or  drive  the  truth  out  of  him  if  he  have  any ;  but 
the  severity  will  lose  none  of  its  force,  nay,  it  will  re- 
ceive an  increase  of  it,  by  being  furbished  with  the 
polish  of  courtesy  instead  of  roughened  with  the  lan- 
guage of  uncompromising  rudeness.1  The  tone  in 
which  questions  are  asked  will  not  only  have  a  great 
effect  with  the  jury,  but  with  the  witness  himself.  & 
cross-examining  counsel  should  always  seem  in  ear- 
nest; if  he  have  the  appearance  of  one  who  is  simply 
endeavoring  to  amuse  an  audience,  the  jury  will  quick 
ly  come  to  the  conclusion  that  he  does  not  believe  ic 
his  own  case.  Manner  plays  a  great  part  in  advocacy. 
Every  one  knows  that  a  question  in  one  tone  will  in- 
duce an  answer,  where  in  another  it  will  not;  that  the 
emphasis  upon  a  particular  word  may  produce  a  total  - 
ly  different  version  from  that  which  it  would  cause  if 
laid  upon  another.  An  advocate  should  never  appear 
to  be  hostile  in  cross-examination  if  he  can  avoid  it; 
hostility  is  infectious,  it  may  get  into  the  jury  box. 
and  thence  to  the  judge. 


i  A  great  authority  on  Rhetoric,  speaking  on  the  subject  of  cross 
examination,  says:  "In  oral  examination  of  witnesses  a  skillful 
cross-examiner  will  often  elicit  from  a  reluctant  witness  most  im- 
portant truths  which  the  witness  is  desirous  of  concealing  or  dis- 
guising. There  is  another  kind  of  skill,  which  consists  in  so 

alarming,  misleading,  or  bewildering  an  honest  witness  as  to  throw 

t 
discredit  on  his  testimony  or  prevent  the  effect  of  it.     This  kind  of 

art  may  be  characterized  as  the  most,  or  one  of  the  most,  base  and 
depraved  of  all  possible  employments  of  intellectual  power.  Gen- 
erally speaking,  I  believe  that  a  quiet,  gentle  and  straightforward — 
though  full  and  careful— examination,  will  be  the  most  adapted  to 
elicit  truth,  and  that  the  maneuvers  and  the  browbeating  which 
are  the  most  adapted  to  confuse  an  honest  witness  are  just  what 
the  dishonest  one  is  the  best  prepared  for."  Whateley's  Elements 
of  Rhetoric,  p.  165. 


CROSS-EXAMINATION.  93 

§  63.  Asking  Questions  Liable  to  Call  Forth  Ad- 
verse Replies.— It  is  a  good  rule  in  cross-examining  a 
witness  never  to  ask  a  question  the  answer  to  which 
may  lie  adverse  to  the  cross-examiner's  case.  Noth- 
ing but  absolute  necessity  should  induce  a  departure 
from  this  rule.  There  are  so  many  ways  of  framing 
a  question  or  a  series  of  questions,  that  it  would  dis- 
close a  poverty  of  ingenuity  indeed  if  the  cross-exam- 
iner asked  one  that  might  involve  the  fate  of  his  client. 
Many  lawyers  constantly  put  questions  and  elicit  an- 
swers dangerous  and  often  fatal  to  their  case;  where- 
as, with  the  exercise  of  3  little  ingenuity,  they  might, 
by  small  portions  at  a  time,  as  if  they  were  enticing  a 
shy  bird  with  crumbs,  obtain  little  by  little  that  which 
they  require  as  a  whole.  Not  only  when  doubtful  of 
the  answer  should  this  course  be  adopted,  but  even 
u'hen  it  is  necessary  to  Ids  case  that  a  particular  an- 
swer should  be  obtained.  And  it  might  be  suggested, 
as  a  good  and  safe  rule,  that  if  he  be  desirous  of  get- 
ting an  answer  to  a  particular  question,  he  should  not 
put  it.  The  probability  is  that  the  witness  will  know 
his  difficulty  and  avoid  giving  him  exactly  what  he 
wishes.  Besides  avoiding  the  danger  of  eliciting  evi- 
dence which  may  be  adverse  to  the  advocate's  client, 
it  should  be  remembered  that  by  cross-examination  a 
color  may  be  given  to  that  elicited  in  chief,  which  may 
not  only  emphasize  it,  but  give  it  the  appearance  of 
evidence  which  the  cross-examiner  himself  has  adduc- 
ed. Counsel  should  carefully  avoid  making  his  adver- 
sary's witness  his  own  by  cross-examination,  as  he 
certainly  will  if  he  obtains  answers  favorable  to  the 
other  side. 

§  64.  Cross-Examination    of   Evasive    and    Hostile 
Witnesses.— If  a  witness  is  not    altogether    straight- 


94  AMERICAN     ADVOCACY. 

forward1  he  will  be  on  the  alert,  and  unless  the  cross- 
examiner  circumvent  him  he  will  evade  his  question, 
It  is  in  such  a  situation  as  this  that  the  skill  of  the 
cross-examiner  is  shown.  One  advocate  will  sit  down 
baffled,  another  will  obtain  all  that  he  requires.  A 
series  of  questions,  not  one  of  them  indicative  of,  but 
each  leading  up  to  the  point,  will  accomplish  the  work. 
If  the  fact  be  there  the  cross-examiner  can  draw  it 
out,  or  if  he  do  not  so  far  succeed,  he  can  put  the  wit- 
ness in  such  a  position  that  from  his  very  silence  the 
inference  will  be  obvious.  In  cross-examining  a  hos- 
tile witness  upon  a  point  that  is  material  it  is  some- 
times advisable  to  put  ten  unimportant  questions  to 
one  that  is  important,  and  when  the  cross-examiner 
has  put  the  important  one  he  should  put  it  as  though 
it  were  the  most  unimportant  of  all.  And  then,  when 
the  cross-examiner  has  once  got  the  answer  he  wants, 
he  should  leave  it;  he  should  divert  the  mind  of  the 
witness  by  some  other  question  of  no  relevancy  at  all. 
There  is  no  occasion  to  emphasize  an  answer  while  the 
witness  is  in  the  box  if  the  question  be  properly  put. 
The  time  for  that  will  come  when  the  advocate  sums 
up  or  replies.  If  the  witness  sees  from  the  advocate's 
manner  that  he  has  said  something  which  is  detrimen- 
tal to  the  party  for  whom  he  has  given  his  evidence— 
unless  he  be  an  honest  witness — he  will  endeavor  to 
qualify  it,  and  perhaps  succeed  in  neutralizing  its  ef- 
fect. If  the  advocate  leave  it  alone,  it  may  be  that  his 
opponent  may  not  perceive  its  full  effect  until  it  has 
passed  into  the  region  of  comment.  Nothing  is  more 


i  For  different  classes  of  obstructive,  hostile  and  evasive  wit- 
nesses, and  how  to  deal  with  them,  see  chapter  entitled  "Classes  of 
Witnesses."  •*•  -  \\  '•! 


CROSS-EXAMINATION.  95 

unskillful  than  repeating  a  question  when  a  favorable 
answer  has  been  obtained. 

§  65.  Some  Miscellaneous  Observations.— It  is  a 
good  rule  never  to  put  a  question  in  cross-examination 
witliout  being  able  to  give  a  reason  for  it.  Many  young 
advocates  rise  to  cross-examine  without  the  least  idea 
of  what  they  are  going  to  ask,  and  take  the  witness 
back  through  the  evidence-in-chief,  as  though  it  had 
not  made  effect  enough  upon  the  jury.  Nothing  can 
be  more  unskillful  than  this.  "Cross-examination,'* 
said  a  learned  judge  to  a  junior,  "does  not  consist  in 
repeating  in  a  louder  tone  the  examination-in-chief." 
Another  important  rule  to  be  remembered  is  that  it  is 
not  wise  to  cross-examine  for  explanations,  unless  the 
explanation  is  necessary  for  your  case.  No  doubt 
there  is  some  degree  of  fascination  in  solving  a  mys- 
tery, but  when  the  advocate  finds  that  the  explanation 
of  it  is  immensely  to  the  advocate's  disadvantage,  he 
will  not  quite  so  much  enjoy  the  quiet  smile  of  his  op- 
ponent when  the  latter  finds  that  he  has  cleared  up 
something  which  he  could  not,  and  which  he  has  pur- 
posely left  for  the  exercise  of  the  cross-examiner's  in 
gentiity  and  fertility  of  inquiry.1 

Cross-examining  for  small  discrepancies  in  conver- 
sations is  generally  useless;  always  so  merely  as  a  test 

i  "Before  dismissing  a  witness,  however,  the  possibility  of  being 
able  to  elicit  some  new  facts  in  our  favor  should  be  taken  into 
consideration.  If  the  witness  is  apparently  truthful  and  candid, 
this  can  readily  be  done  by  asking  plain,  straightforward  questions. 
If,  however,  there  is  any  reason  to  doubt  the  willingness  of  the 
witness  to  help  develop  the  truth,  it  may  be  necessary  to  proceed 
with  more  caution,  and  possibly  to  put  the  witness  in  a  position 
where  it  will  appear  to  the  jury  that  he  could  tell  a  good  deal  if 
he  wanted  to,  and  then  leave  him.  The  jury  will  thus  draw  the 
inference  that,  had  he  spoken,  it  would  have  been  in  our  favor." 
Wellman's  Art  of  Cross-Examination,  p.  26. 


96  AMERICAN     ADVOCACY. 

of  veracity.1  Veracity  must  be  tested  by  divergencies 
of  statement  upon  material  points,  and  with  refer- 
ence to  matters  respecting  which  the  witnesses  could 
hardly  be  mistaken.  Differences  upon  other  points 
merely  go  to  memory,  closeness  of  observation,  or  de- 
scriptive power. 

§  66.  In  Conclusion.— That  the  modes  hinted  at  in 
this  chapter  are  useful  is  a  matter  not  of  speculation, 
but  of  experience.  Many  of  these  hints  may  appear 
to  be  commonplace  suggestions;  they  are  the  rudi- 
ments of  advocacy,  nevertheless,  and  rudimentary 
knowledge  often  comes  to  us  only  after  long  experi- 
ence or  through  the  kindness  of  an  experienced  friend. 
Sometimes  it  comes  after  wearying  disappointments 
and  heartfelt  rebukes.  These  suggestions  have  been 
noted  with  the  hope  of  saving  some  the  weary  and 
watchful  labors  that  so  many  have  undergone.  No- 
where has  an  attempt  been  made  to  throw  out  a  hint 
for  the  purpose  of  enabling  an  advocate  to  confound 
or  entrap  the  honest  and  truthful  witness,  around 
whom  every  protection  should  be  thrown ;  but  our  en- 
deavor has  been  to  suggest  modes  of  dealing  with  the 
artful  and  the  vicious,  in  order  that  deceit  may  be 
baffled  and  imposture  exposed. 

Another  word.  When  the  advocate  has  studied  his 
hardest  to  learn  how  to  cross-examine,  the  next  les- 
son should  be  how  to  do  as  little  of  it  as  he  can;  he 

i  In  a  case  before  Mr.  Justice  Stephen,  the  learned  judge  said: 
"I  think  it  the  greatest  waste  of  time  to  ask  questions  in  order  to 
get  contradictions  with  regard  to  conversations.  There  may  be 
material  points  upon  which  it  is  important  to  cross-examine.  If 
any  two  persons  were  to  give  an  account  of  the  conversation  which 
the  two  learned  counsel  have  been  holding  for  the  last  hour  and  a 
quarter,  there  would  be,  I  suspect,  a  vast  difference  indeed  between 
their  statements." 


CROSS-EXAMINATION.  97 

should  never  cross-examine  if  he  can  safely  avoid  it, 
and  when  he  does,  let  the  questions  be  few  and  with  a 
purpose.  The  best  cross-examiner  is  generally  the 
shortest. 


CHAPTER  VII. 


RE-EXAMINATION. 


§  72.  Re-examination  in  Cases 
Where  Character  or 
Credibility  of  Witness 
has  been  Attacked. 

73.  Pursuing  an  Equivocal  Re- 

ply of  One's  Own  Wit- 
ness, Elicited  on  Cross 
Examination. 

74.  Repetition  of  Evidence   in 

Chief  on  Re-examina- 
tion. 


§  67.  General  Principles. 

68.  Dangers     of     Re-examina- 

tion. 

69.  Where  the  Cross-Examina- 

tion  is  Favorable  to  the 
Re-examiner. 

70.  Re-examination  Where  the 

Cross-Examination  is 
Unfavorable  to  the  Ex- 
aminer. 

71.  Seizing   Opportunities     Of- 

fered by  the  Cross-Ex- 
amination to  Introduce 
Matter  Otherwise  Inad- 
missible. 

§  67.  General  Principles.— This  branch  of  advocacy 
will  not  require  very  elaborate  treatment.  Not  that 
it  is  by  any  means  an  unimportant  subject  or  a  small 
matter  in  the  conduct  of  a  case ;  on  the  contrary,  it  is 
worthy  of  the  most  careful  study,  and  the  following 
hints  may  be  of  some  use,  while  they  show  the  dan- 
gers as  well  as  the  advantages  of  re-examination.  If 
it  were  not  necessary,  cross-examination  would  bo 
useless.  To  restore  the  ravages  that  have  been  made 
by  that  destructive  engine  is  the  principal  duty  of 
this  portion  of  the  advocate's  work.  If  he  has  watched 
the  cross-examination  with  that  unceasing  vigilance 
which  he  ought  to  have  bestowed  upon  it,  he  will  have 


RE-EXAMINATION.  99 

observed  and  noted  the  points  that  have  been  mada 
against  him.  Some  of  his  evidence  has  disappeared 
altogether;  other  portions  have  received  such  a  shock 
that  they  exist  in  a  very  rickety  and  dilapidated  form; 
some  other  parts  have  received  a  coating  of  interpre- 
tation, which  must  be  removed;  other  fragments  lie 
here  and  there  in  a  mass  of  confusion,  from  which 
they  must  be  extricated  if  he  desire  to  re-establish  his 
case.  He  should  begin  to  repair  where  the  first  breach 
was  made.  The  witness  may  have  given  an  answer 
he  did  not  intend,  and  very  much  of  the  subsequent 
mischief  may  have  flowed  from  that  unfortunate  mis- 
take. If,  therefore,  the  examiner  set  that  right,  he  will 
easily  pass  along  and  repair  the  damages  which  have 
resulted  from  it.  He  should  proceed  in  his  work  of 
repair  as  the  destroyer  proceeded  in  his  work  of  de- 
struction. Explanations  in  this  stage  of  the  case  often 
make  the  examiner's  evidence  the  stronger  for  the  con- 
fusion in  which  it  has  been  temporarily  involved.* 

§  68.  Dangers  of  Re -Examination.— But,  unless  re- 
examination  be  absolutely  necessary,  it  should  never 
be  used.  It  is  not  every  trifle  that  should  induce  an 
advocate  to  commence  afresh  with  his  witness.  If  a 
trivial  and  unimportant  point  has  been  made,  but  the 
leading  facts  of  the  case  are  left  undisturbed,  the  mat- 
ter should  be  left  to  the  jury.  By  not  re-examining 
when  not  obliged  to,  the  danger  of  cross-examining 
one's  own  witness  will  be  avoided.  An  advocate  is  not 
required  to  explain  everything.  It  sometimes  happens 
that  a  witness,  from  natural  suspicion  of  the  inten- 
tions of  the  cross-examining  counsel,  will  not  answer 
intelligibly — will  hesitate  or  stumble.  It  is  not,  how- 
ever, necessary  that  the  advocate  should  fly  to  pick 
him  up  before  he  is  down.  If  his  evidence-in-chief 


1EO.  H.  WOOD 


100  AMERICAN     ADVOCACY. 

has  been  fairly  given,  the  jury  will  be  sure  to  make  al- 
lowance for  subsequent  maneuvers  to  upset  him. 
Whereas,  if  the  examiner  rush  to  the  rescue  unneces- 
sarily, and  endeavor  to  obtain  explanations  not  vouch- 
safed to  his  opponent,  the  witness  will  think  he  is 
anxious  for  his  answers,  and,  recovering  from  his  ner- 
vousness, fill  up  the  gaps  the  opposing  counsel  has 
left.  In  other  words,  the  advocate  will  complete  the 
cross-examination,  with  this  additional  advantage  to 
his  opponent — that  the  evidence  will  look  like  evidence- 
in-chief,  and  not  like  that  extracted  by  a  hostile  ex- 
aminer. 

§  69.  Where  the  Cross-Examination  Is  Favorable 
to  the  Re -Examiner.— If  an  answer  to  be  elicited  in 
cross-examination  which  is  favorable  to  the  advocate's 
case,  it  is  highly  important  that  he  should  not  appear 
to  be  so  fascinated  with  it  as  to  re-examine  upon  that. 
Something  else  may  be  admissible  in  consequence,  and 
this  opportunity  should  be  watched  for  and  seized.  If 
he  re-examine  upon  the  very  fact  obtained  for  him, 
this  result  may  follow:  that  his  opponent,  who,  dis- 
creetly enough,  declined  to  pursue  the  subject  fur- 
ther, may  have  the  satisfaction  of  hearing  \\irn  get  an 
explanation  which  may  neutralize  the  effect  of  his  mis- 
take. "Let  well  alone."  A  favorable  answer  to  the 
advocate,  elicited  in  cross-examination,  is  not  a  sub- 
ject to  re-examine  upon  of  itself,  but  to  be  made  the 
most  of  in  his  reply. 

§  70.  Re-Examination  Where  the  Cross-Examina- 
tion Is  Unfavorable  to  the  Examiner.— As  the  advo- 
cate watches  carefully  the  cross-examination  of  his 
witness,  he  will  probably  be  made  aware  for  the  first 
time  of  many  weak  points  in  his  case.  If  there  should 
be  one  which  he  has  flattered  himself  has  been  passed 


RE-EXAMINATION.  101 

cleverly  by  in  his  examination-in-chief,  he  may  cer- 
tainly anticipate  a  well-directed  blow  in  that  quarter 
at  all  events.  It  is  in  the  remedying  of  such  a  misad- 
venture that  the  art  of  re-examination  consists;  and 
it  is  only  by  an  intimate  knowledge  of  the  facts  and 
their  relative  bearings  that  an  advocate  will  be  en- 
abled to  set  his  witness  up  when  his  evidence  has  been 
thus  battered.  Sometimes  a  cross-examination  has 
been  so  effective  that  the  evidence  of  a  particular  wit- 
ness has  been  hopelessly  demolished.  An  experiencd 
advocate,  under  such  circumstances,  will  resign  him 
to  his  fate.  If  he  have  other  witnesses,  upon  whom 
he  can  rely,  his  task  will  be  with  them ;  if  not,  the 
case  must  fall  with  the  witness. 

§  71.  Seizing  Opportunities  Offered  by  the  Cross- 
Examination  to  Introduce  Matter  Otherwise  Inad- 
miss able.— Next  to  carefully  watching  for  any  points 
that  may  be  made  against  him,  a  no  less  important 
duty  of  the  advocate  will  be  to  see  hoiv  he  may  turn 
an  answer  to  his  advantage.  His  adversary  may  not 
be  a  very  skillful  or  experienced  advocate ;  he  may  be 
an  indifferent  cross-examiner;  in  which  event  the  ad- 
vocate may  safely  trust  him  to  play  into  his  hands. 
He  will  get  portions  of  conversations  which  will  make 
the  remainder  admissible;  perhaps  put  in  documents 
which  will  give  him  the  same  advantage,  besides  af- 
fording him  the  right  of  reply;  and  if  the  advocate 
have  been  considerate,  he  will  have  left  his  opponent 
to  follow  up  a  question  or  two  put  for  the  express  pur- 
pose. This  does  not  imply  that  he  will  have  left  any- 
thing out  in  his  examination-in-chief  which  it  was  ma- 
terial to  prove;  that  would  be  the  height  of  folly.  The 
advocate  must  always  assume  that  his  opponent  will 
not  prove  his  case  for  him.  We  speak  only  of  matters 


102  AMERICAN     ADVOCACY. 

which  he  himself  cannot  get  in,  and  which,  neverthe- 
less, have  an  important  bearing  upon  his  case. 

§  72.  Re-Examination  in  Cases  Where  Character  or 
Credibility  of  Witness  Has  Been  Attacked.— The  ad- 
vocate must  watch  also  to  see  whether  any  attack  be 
made  upon  his  witness  in  cross-examination.  If  his 
credibility  be  assailed  he  must  be  prepared  to  re-es- 
tablish it  if  necessary,  for  that  is  the  foundation  upon 
which  his  evidence  rests;  and  he  must  do  it  by  ques- 
tions that  will  elicit  explanations  of  circumstances 
left  doubtful,  by  removing  the  grounds  of  suspicion, 
and  giving  the  real  character  to  a  transaction  capable 
of  two  constructions.  When  this  is  properly  done, 
nothing  is  more  effective  with  a  jury ;  they  will  feel  as 
though  they  had  been  relieved  of  a  burden.  They  will 
be  pleased  to  find  suspicion  removed  from  a  person 
whom  they  desire  to  believe;  and  not  only  this,  the 
impression  of  having  been  imposed  upon  will  also  be 
removed,  and  their  minds,  temporarily  disturbed,  will 
settle  down,  as  it  were,  into  a  state  of  tranquillity  and 
satisfaction.  Cross-examination  as  to  character  is  at 
most  times  an  uncertain  performance.  One  never  can 
be  sure  as  to  the  view  the  jury  will  take.  It  is  the 
part  of  an  advocate's  duty  which  they  least  like.  It 
need  not  be  said  it  is  the  advocate's  bounden  duty  to 
protect  his  witness  to  the  utmost  of  his  power.  Some- 
times he  may  do  it  by  way  of  objection,  but  if  not,  he 
must  exercise  his  best  skill  to  effect  his  purpose  by  re- 
examination.1 


i  One  Instance  may  be  given,  of  many,  where  character  was 
once  cruelly  assailed  in  cross-examination  by  an  inexperienced  adro 
cate,  and  upon  whom  it  recoiled  with  crushing  severity.  He  asked 
a  witness  if  he  had  not  been  convicted  of  felony.  In  vain  tb> 
unfortunate  victim  in  the  box  protested  that  -it  had  nothing  to  df 


RE-EXAMINATION.  103 

When  questions  have  been  asked  on  cross-examina- 
tion as  to  character  and  have  failed,  it  is  far  better  for 
the  advocate  to  deal  with  the  matter  in  his  address  to 
the  jury  than  to  put  the  stereotyped  question  in  re-ex- 
amination: "Is  there  any  pretense  for  suggesting," 
etc.,  etc.?  The  first  denial  answers  all  purposes  for 
the  time  being,  and  the  mere  repetition  of  it  adds  no 
weight;  besides,  the  natural  indignation  arising  from 
the  circumstances  will  be  all  the  better  for  not  being 
exploded  too  soon.  A  quiet  and  indignant  protest  to 
the  jury  will  be  all  that  is  necessary. 

§  73.  Pursuing  an  Equivocal  Reply  of  One's  Own 
Witness,  Elicited  on  Cross-Examination.— Sometimes 
a  question  ivill  be  put  in  cross-examination  which  pro- 
duces an  answer  not  unfavorable  to  either  side,  but 
which  it  may  not  be  considered  safe  to  follow  up  by 
another.  The  advocate  will  have  to  consider  whether 
it  will  be  safe  on  his  part  to  take  it  up  where  his  op- 
ponent has  left  it,  and  he  will  best  consider  this  by 
weighing  the  whole  of  the  facts  of  his  case  and  the  ef- 
fect of  the  answer  whatever  it  might  be;  or  he  might 
put  a  question  or  two  by  way  of  test,  and  then  aban- 
don it  or  not  as  the  answers  warranted.  Again,  the 

with  the  case.  "Have  you  not  been  convicted  of  felony?"  persisted 
the  counsel.  "Must  I  answer,  your  honor?"  "I  am  afraid  you 
must,"  answered  the  judge.  "There  is  no  help.  It  will  be  better 
to  answer  it,  as  your  refusal,  in  any  event,  would  be  as  bad  as 
the  answer."  "I  have,"  murmured  the  witness,  under  a  sense  of 
shame  and  confusion  very  plainly  manifest.  The  triumphant  coun- 
sel sat  down.  Not  long,  however,  was  his  satisfaction.  In  re- 
examination,  the  witness  was  asked:  "When  was  it?"  A.  "Twenty- 
nine  years  ago!"  The  Judge:  "You  jvere  only  a  boy?"  Witness: 
"Yes,  your  honor."  It  need  scarcely  be  added  that  a  just  and  manly 
indignation  burst  from  all  parts  of  the  court,  and  the  comments  of 
the  learned  judge  were  anything  but  complimentary  to  the  inju- 
dicious advocate. 


104  AMERICAN     ADVOCACY. 

opposing  counsel  may  have  put  a  question  which  has 
"let  in"  something  as  a  basis  for  re-examination;  or, 
on  the  other  hand,  he  may  have  put  one  which  tempts 
the  re-examiner  to  follow  it  up,  and  by  that  means  may 
have  let  him  in.  The  utmost  caution,  therefore,  is 
necessary  in  pursuing  anything  that  has  been  started 
by  the  adversary.  He  is  by  no  means  a  safe  guide  to 
follow,  and  the  less  company  kept  with  him  the  bet- 
ter. 

§  74.  Repetition  of  Evidence  in  Chief  on  Re-Exam- 
ination.—Above  all  things  it  should  be  remembered 
that  re-examination  does  not  consist  in  repeating  the 
evidence-in-chief ,  or  in  explaining  answers  that  are  in 
the  re-examiner's  favor.  If  the  latter 's  case  be  a  good 
xone  and  his  witnesses  honest,  very  little  will  be  left  to 
do  at  this  stage  of  the  proceedings.  If  it  be  a  bad 
case  and  his  witnesses  the  reverse  of  truthful,  all  the 
re-examination  in  the  world  will  not  set  them  up  as 
they  were  before.  It  is  of  immense  importance,  and 
indeed  necessary  for  the  purpose  of  explaining  some- 
thing which  has  been  left  obscure,  or  removing  an  er- 
roneous impression,  or  supplementing  some  matter 
which,  taken  by  itself,  looks  to  the  advocate's  disad- 
vantage ;  for  most  other  purposes  it  would  be  worse 
than  a  waste  of  time,  since  it  would  unquestionably 
injure  his  cause.  Re-examination  arises  from  a  right 
to  explain.  It  is  often  so  advantageous  that  a  case 
may  be  won  by  its  judicious  exercise,  while  it  is  usu- 
ally so  innocent  of  evil  that  it  would  require  the  ut- 
most ingenuity  of  the  most  inexperienced  counsel  to 
make  it  the  means  of  losing  one.  The  advocate  must 
have  a  thorough  knowledge  of  his  facts,  and  have 
watched  every  question  of  the  cross-examination  with 
the  utmost  vigilance,  to  take  the  full  benefit  of  his 


RE-EXAMINATION.  105 

right  and  to  make  his  case  stand  out  in  the  bolder  re- 
lief which  the  cross-examination  will  afford  to  it.  But 
nothing  is  more  tedious  or  more  irritating  to  judge  or 
jury  than  to  see  an  advocate  floundering  in  re-exami- 
nation among  facts  which  he  only  displaces  and  con- 
fuses, thinking  he  must  needs  ask  something  because 
there  has  been  a  long  and  it  may  be  severe  cross-ex- 
amination. It  should  be  first  ascertained  tuhat  fact 
has  been  displaced  or  obscured,  and  what  new  matter 
introduced,  and  then  the  advocate  will  know  what  re- 
quires to  be  re-arranged  and  what  to  be  explained  be- 
fore he  rises  to  put  a  single  question. 


CHAPTER  VIII. 

SUMMING  UP  DEFENDANT'S  CASE. 


§  75.  General  Considerations. 
76.  Right  to  Argue  Upon  Ante- 
cedent Evidence. 


§  77.  Points  of  Danger. 

78.  Accuracy     and     Exaggera- 
tion. 


§  75.  General  Considerations.— A  few  words  will 
suffice  for  this  subject.  Not  that  it  is  by  any  means 
an  unimportant  branch  of  advocacy.  On  the  contrary, 
it  is  as  invaluable  as  any  privilege  the  advocate  pos- 
sesses. It  should  be  remembered  that  summing  up  de- 
fendant's evidence  is  not  a  repetition  of  the  opening 
speech,  in  which  his  attorney  analyzed  the  plaintiff's 
evidence  with  sufficient  skill  to  show  how  worthless 
some  of  it  was,  and  what  residuum  was  left  to  be  dis- 
posed of  by  his  own  witnesses.  If  he  performed  that 
duty  half  as  well  as  he  should,  the  parts  that  he  elimi- 
nated are  gone  forever.  It  only  remains,  therefore, 
to  meet  the  matters  that  require  answering  with  evi- 
dence on  his  part.  He  has  now  abundant  scope  for 
his  powers  of  reasoning  and  for  analytical  compari- 
son. There  may  be  some  opportunity,  also,  for  some- 
thing of  declamation,  of  eloquence  and  earnestness- 
it  may  be,  of  pathos  itself.  But,  if  so,  it  should  be  re- 
membered that  it  is  the  pathos  of  facts  and  the  elo- 
quence of  facts,  too,  that  he  most  needs:  if  these  fail, 
he  might  just  as  well  beat  a  tambourine  and  imagine 
himself  an  orchestra. 


SUMMING    UP   DEFENDANT'S    CASE.  1Q7 

§  76.  Right  to  Argue  upon  Antecedent  Evidence.— 
It  is  not  absolutely  forbidden  to  argue  upon  antece- 
dent evidence,  although  the  defendant's  attorney  has 
but  the  bare  right  to  "sum  up."  The  sum  total  may 
be  not  only  his  own  evidence,  but  that  evidence  sup- 
plemented in  matter  and  weight  by  the  evidence  of 
plaintiff  and  his  witnesses.  No  rule  can  be  laid  down 
in  this  particular,  nor  will  the  judge  be  overstrict  in 
keeping  the  defendant's  attorney  upon  the  direct  line 
of  his  evidence. 

§  77.  Points  of  Danger.— As  the  reply  will  follow 
the  speech  of  defendant's  attorney,  he  will,  of  course, 
calculate  what  are  the  points  likely  to  be  made  against 
him,  and  if  he  has  any  knowledge  of  character  at  all, 
he  will  know  what  points  have  most  impressed  his  ad- 
versary. Nearly  all  the  cards  having  been  played,  he 
ought  to  know  exactly  what  are  left  in  his  opponent's 
hand.  He  must,  as  a  matter  of  course,  strengthen 
those  points  which  are  likely  to  be  assailed,  and  bring 
into  strong  prominence  those  portions  of  his  case 
which  are  established  beyond  the  reach  of  eloquence. 

If  he  has  kept  his  eyes  open,  he  will  not  be  misled 
by  any  feint  that  may  have  been  made  by  his  oppo- 
nent. If  the  latter  has  discovered  a  weakness  in  the 
defendant's  case  which  defendant's  attorney  does  not 
perceive,  it  will  be  little  short  of  a  calamity  for  his 
client  when  plaintiff's  counsel  comes  to  reply.  This 
so  often  happens,  that  the  greatest  vigilance  is  neces- 
sary from  the  moment  the  case  is  launched  till  the  last 
witness  has  been  re-examined 

"What  word  or  remark  of  a  witness  may  be  the  turn- 
ing-point in  a  case,  the  defendant's  attorney  can  never 
tell.  What  may  be  the  test  which  the  jury  will  apply 
to  the  evidence  he  can  but  surmise;  but  that  no  word 


108  AMERICAN     ADVOCACY. 

should  escape  his  attention  is  as  certain  as  that,  in 
surveying  the  ocean  bed,  no  rock  or  prominence  can 
be  left  unnoted  with  safety  to  the  mariner. 

§  78.  Accuracy  and  Exaggeration.— One  further  ob- 
servation will  be  made.  In  summing  up,  the  defend- 
ant's attorney  should  be  sure  he  exhibits  the  qualities 
of  a  good  arithmetician;  otherwise,  he  may  upset  the 
calculations  of  his  own  witnesses.  The  jury  will  tol- 
erate no  false  casting  up.  They  will  require  a  correct 
total,  whatever  they  may  think  of  the  individual  items. 
Some  they  may  disallow,  others  they  may  admit,  if  the 
advocate's  total  be  accurate;  if  not,  they  may  reject 
the  whole  with  disgust  or,  even,  disappointment.  He 
should  bear,  also,  in  mind  that  if  he  have  two  twos  he 
need  not  labor  to  convince  the  jury  that  the  total  is 
four;  and,  above  all  things,  he  should  be  careful  that 
he  does  not  attempt  to  prove  that  it  amounts  to  five. 


CHAPTER  IX. 

THE  REPLY. 


§  88.  Importance  to  be  Attached 
to  the  Probabilities  of 
the  Evidence. 

89.  Conciseness  in  the  Reply. 

90.  The       Use       of       Illustra- 

tions  and   Conventional 
Phrases. 

Appeals  to  Passion  or  Pre- 
judice. 

A  Temperate  and  Accurate 

Style. 
93.  The  Peroration. 


91. 


92. 


§  79.  Value  of  the  "Last  Word." 

80.  Securing       Attention       o  f 

Court  and  Jury. 

81.  Flattering  the  Jury. 

82.  Display  of  Self-Confidence. 

83.  Personal   Attack   on   Oppo- 

nent or  His  Counsel. 

84.  Effect   of   an    Earnest    and 

Quiet    Manner. 

85.  Order  and  Arrangement  of 

the  Reply. 

86.  Attacking  Opponent's  Case 

First. 

87.  Dealing  with  the  Effect  of 

the  Testimony,  Not  the 
Testimony   Itself. 


§  79.  Value  of  the  "Last  Word."  -The  reply  is  al- 
ways of  great  importance,  and  a  struggle  is  frequent- 
ly made  for  the  "last  word."  Many  persons  affect  to 
disbelieve  in  it,  but  certainly  not  those  who  are  able 
by  their  eloquence  to  avail  themselves  fully  of  its  ad- 
vantages. Even  evidence  itself  is  sometimes  sacri- 
ficed for  the  sake  of  the  reply,  although  if  the  evidence 
be  of  the  smallest  value  this  is  hardly  a  course  which 
ought  to  be  pursued.  However  powerful  arguments 
may  be,  facts  are  more  powerful  still.  Nevertheless, 
it  is  frequently  a  question  whether  the  advocate  will 
rely  on  his  address  for  the  verdict  or  call  witnesses 


HO  AMERICAN     ADVOCACY. 

and  give  the  reply  to  Ms  opponent.  Under  any  cir- 
cumstances, however — except  in  a  case  where  one  ad- 
vocate is  powerful  and  the  other  weak  of  speech — the 
reply  is  a  valuable  privilege.  Some  speeches,  doubt- 
less, are  worse  than  none  at  all,  and  may  even  assist 
the  other  side  by  means  of  contrast. 

§  80.  Securing  Attention  of  Court  and  Jury.— No 
one  will  doubt  that  the  first  thing  to  do  is  to  secure  the 
attention  of  the  jury.  The  next,  that  of  the  judge. 
Although  this  is  named  second,  it  is  very  often  of  the 
first  importance,  as,  frequently,  when  the  advocate  has 
not  the  jury  with  him,  he  may  win  by  having  the  judge. 
The  latter 's  influence  is  always  powerful;  therefore, 
the  advocate  should  gain  his  attention  if  he  can.  If 
the  judge  take  the  advocate's  view  of  law  and  facts, 
the  verdict  follows  either  there  or  elsewhere.  He  will, 
however,  take  at  times  a  somewhat  different  view  both 
of  the  facts  and  the  law ;  and  then,  in  spite  of  opposi- 
tion, the  advocate  must  endeavor  to  win  his  way  with 
the  jury.  This  is  the  object  of  the  reply,  as  of  the 
other  processes  of  the  case.  And  how  to  accomplish 
it  is  a  question  on  the  consideration  of  which  too  much 
time  and  study  cannot  well  be  bestowed. 

§  81.  Flattering  the  Jury.— In  conciliating  a  jury, 
so  as  to  put  them  on  good  terms  with  him  and  secure 
their  attention,  the  advocate  should  be  careful  not  to 
adopt  a  practice  too  common  with  young  advocates, 
namely,  that  of  -flattering  them.  The  advocate  must 
not  forget  that  their  nature  is  by  no  means  changed 
because  they  are  in  the  jury-box.  Stroking  a  jury  is 
not  a  dignified  proceeding;  talking  about  their  intelli- 
gence, as  though  it  were  necessary  to  remind  them 
that  they  are  not  altogether  fools,  is  the  worst  means 


THE  REPLY.  HI 

to  make  them  believe  in  the  advocate's  intelligence  or 
knowledge  of  mankind.  Nor  do  they  need  to  be  in- 
formed that  they  are  Americans ;  those  who  are  know 
the  fact;  those  who  are  not  take  it  as  no  compliment 
to  their  nationality.  Again,  obtruding  upon  them  the 
information  that  they  are  sensible  men  will  not  im- 
prove their  opinion  of  the  advocate  or  interest  them 
in  any  way.  What  the  advocate  has  to  do  is  not  to 
convince  them  that  they  are  sensible,  but — that  he  is! 
Nor  is  it  necessary  to  remind  them  that  he  is  "  quite 
certain  that  they  will  take  an  honest  and  impartial 
view  of  the  facts ; ' '  this  is  not  replying,  nor  is  it  rhet- 
oric; it  is  the  flimsiest  of  claptrap.  Hackneyed  ex- 
pressions are  always  ineffective,  stale,  and  irritating ; 
they  show  a  poverty  of  idea  as  well  as  language,  and 
exhibit  the  weakest  style  of  advocacy.  There  is  no 
necessity  to  argue  with  the  jury  upon  their  honesty,  as 
though  there  were  some  doubt  about  it;  or  their  im- 
partiality, as  if  the  advocate  had  a  suspicion  that  they 
were  being  influenced  by  a  strong  interest  on  the  other 
side.  Any  observations  will  be  simply  foolish  that 
have  for  their  object  the  inducing  the  jury  to  believe 
in  themselves;  a  far  better  attempt  will  be  to  make 
them  believe  in  the  advocate  himself. 

§  82.  Display  of  Self -Confidence.— The  advocate 
should  convince  the  jury  that  he  believes  in  himself. 
No  one  can  overestimate  the  value  of  faith  in  one's 
self.  By  this  is  not  meant  an  obtrusive  self-confidence 
or  conceit,  but  an  earnest  and  unassuming  self-reli- 
ance. Belief  is  a  great  power,  and  always  lends  some- 
thing to  effort.  Belief  in  self  has  produced  some  of 
the  greatest  successes  the  world  has  seen.  George 
Eliot  says:  "The  greater  part  of  the  worker's  faith 
in  himself  is  made  up  of  the  faith  that  others  believe 


112  AMERICAN     ADVOCACY. 

in  him."  So,  faith  acts  and  reacts.  Of  the  two,  it  is 
preferable  that  an  advocate  believe  in  himself  rather 
than  in  his  case.  If  he  believe  in  both,  the  case  should 
be  considered  as  good  as  won.1 

§  83.  Personal  Attack  on  Opponent  or  His  Counsel. 
—Another  bad  way  for  an  advocate  to  begin  a  reply 
is  to  attack  his  opponent  or  his  solicitor,  or  the  client. 
The  jury  care  for  none  of  them.  He  has  to  demolish 
the  case  of  his  opponent,  not  him.  Besides,  abuse  is 
neither  argument  nor  advocacy;  and  any  personal  at- 
tack is  mere  abuse,  except  when  it  is  used  to  denounce 
a  witness  whose  evidence  requires  to  be  so  dealt  with. 
Nor  will  it  assist  the  advocate's  case  to  answer  any 
attacks  which  his  opponent  may  foolishly  have  made 
upon  him.  He  should  avoid  being  drawn  from  legiti- 
mate argument  into  a  personal  encounter.  The  dis- 
pute is  not  his,  but  his  client's,  and  it  is  extremely 
selfish  to  indulge  in  a  personal  conflict  at  the  latter 's 
expense.  If  anything  has  been  said  which  required 
an  answer  from  the  advocate,  the  time  for  giving  it 
was  at  the  moment  of  the  utterance.  When  the  advo- 
cate undertakes  to  reply,  it  is  not  his  case,  but  that 
of  his  client,  that  demands  the  individual  attention  of 
the  jury. 

§  84.  Effect  of  an  Earnest  and  Quiet  Manner.— Se- 
curing the  attention  of  the  jury  is  as  much  due  to  the 
manner  in  which  the  advocate  addresses  his  hearers 

i  "If,"  says  Whately,  "the  pleader  can  induce  a  jury  to  believe 
not  only  in  his  own  general  integrity  of  character,  but  also  in  his 
sincere  conviction  of  the  justice  of  his  client's  cause,  this  will  give 
great  additional  weight  to  his  pleading,  since  he  will  thus  be  re- 
garded as  a  sort  of  witness  in  the  cause.  And  this  accordingly  is 
aimed  at,  and  often  with  success,  by  practiced  advocates.  They 
employ  the  language  and  assume  the  manner  of  full  belief  and 
Btrong  feeling." 


THE  REPLY.  J13 

as  the  substance  of  what  he  says.  The  most  thorough 
earnestness  is  the  all-important  quality  either  to  pos- 
sess or  to  assume.  A  quiet  colloquial  sentence  or  two, 
with  not  too  much  of  solemnity,  uttered  as  if  he  had 
the  fullest  confidence  in  them  without  telling  them  so, 
and  as  if  he  also  had  the  fullest  confidence  in  himself, 
without  asserting  it,  will  be  pretty  sure  to  establish  a 
good  understanding  between  him  and  the  jury  at  the 
commencement.  If  he  cannot  succeed  in  this  his  ad- 
dress will  have  little  effect,  however  powerful;  where- 
as if  he  do  succeed,  every  argument  will  have  weight 
in  proportion  to  its  relevancy  to  the  issue. 

§  85.  Order  and  Arrangement  of  the  Reply.— The 
next  thing  to  be  attended  to  now,  although  it  was  the 
first  thing  to  prepare  before  the  advocate  rose,  is  the 
order  and  arrangement  of  his  speech.    No  address  can 
be  good  without  this,  and  it  cannot  be  altogether  bad 
with  it.     The  minds  of  the  hearers  will  more  easily 
follow  and  appreciate  the  address  when  they  are  taken 
along  the  order  of  circumstances  as  they  occurred,  or, 
to  speak  figuratively,  the  main  road,  than  if  led  a 
steeple  chase  across  country.     The  advocate  should 
so  arrange  the  arguments  that  the  jury  can  see  what 
is  to  follow  as  he  advances  along  the  line  of  facts,  and 
it  will  appear  as  if  it  must  be  correct,  because  the  one 
fact  follows  so  naturally  upon  another.     The  whole 
case  is  spread  out  before  the  jury  like  a  map,  and  the 
better  its  divisions  are  traced  the  more  fully  will  their 
relative  bearing  be  understood.     This  will  be  the  re- 
sult of  a  due  order  and  arrangement  of  the  reply. 
The  advocate's  opponent  has  made  his  comments  upon 
the  case;  has  put  prominently  forward  his  own  facts 
and  placed  plaintiff's  as  far  as  possible  in  the  shade; 
has  damaged  some  and  demolished  others.    The  plain- 

8 


AMERICAN     ADVOCACY. 

tiff's  attorney  must  now  not  only  perform  a  like  pro- 
cess with  regard  to  the  case  of  his  opponent,  but  must 
throw  light  into  the  dark  places  and  draw  out  his  own 
facts  from  their  temporary  obscurity. 

§  86.  Attacking  Opponent's  Case  First.— The  best 
advocates  (who  invariably  proceed  by  system)  as  a 
general  rule  adopt  the  course  of  grappling  with  their 
opponent's  case  first.  It  is  fresh  in  the  minds  of  the 
jury,  and  the  best  time  to  deal  with  it  is  before  it  has 
been  long  enough  there  to  make  a  deep  impression.  If 
the  advocate  return  to  it  after  dealing  with  his  own 
case,  he  attacks  instead  of  removing  it,  and  may  leave 
it  still  the  last  and  deepest  impression.  In  doing  this, 
care  must  always  be  taken  by  the  plaintiff's  attorney 
to  avoid  dwelling  on  minor  discrepancies  in  his  oppo- 
nent's evidence  or  upon  the  trivialities  of  the  case. 
Minute  criticisms  impair  the  force  of  an  address  like 
grains  of  dust  in  the  wheels  of  machinery.  They  pro- 
duce friction  and  retard  instead  of  advancing  the 
cause.  The  jury  are  apt  to  think  the  advocate  has 
nothing  better  to  urge,  and  when  he  comes  to  greater 
matters,  he  will  be  jaded  and  wearied,  and  a  good  deal 
of  the  effect  of  his  speech  will  be  lost.  He  cannot  as- 
sign any  position  in  which  trivial  criticism  should  be 
placed,  and  the  probability  is,  therefore,  that  it  will 
be  out  of  place  anywhere.  If  he  attempt  it  before  com- 
ing to  his  main  arguments  the  jury  will  be  wearied, 
and  if  after,  his  arguments  will  lose  some  of  their 
force.  Besides  this,  he  endows  trifles  with  a  fictitious 
importance.  He  places  them  before  the  jury  and  mag- 
nifies them  as  though  he  brought  them  under  a  lens.1 

i  Whately  says:  "Too  earnest  and  elaborate  a  refutation  of  argu- 
ments which  are  really  insignificant,  or  which  their  opponent 
wishes  to  represent  as  such,  will  frequently  have  the  effect  of  giving 


THE  REPLY.  115 

§  87.  Dealing  with  the  Effect  of  the  Testimony,  Not 
the  Testimony  Itself.— It  should  also  be  borne  in  mind 
by  the  advocate  in  replying,  that  what  he  has  really  to 
deal  with  is  not  the  testimony  of  the  witnesses,  but  the 
effect  of  it,  or  the  real  evidence  to  which  it  is  reduced 
by  process  of  examination.1 

If  the  advocate  can  deal  with  the  effect  of  the  evi- 
dence instead  of  with  the  truthfulness  of  a  witness, 

them  importance.  Whatever  is  slightly  noticed  and  afterwards 
passed  by  with  contempt,  many  readers  and  hearers  will  very  often 
conclude  (sometimes  for  no  better  reason)  to  be  really  contemptible. 
But  if  they  are  assured  of  this  again  and  again  with  great  earnest- 
ness they  often  begin  to  doubt  it." 

i  A  was  tried  some  time  since  by  Mr.  Justice  (now  Lord  Justice) 
Brett.  The  action  was  brought  by  the  owner  of  a  valuable  horse, 
against  a  farrier,  for  negligence,  by  improperly  shoeing;  in  conse- 
quence whereof  the  horse  fell  lame  and  had  to  be  killed.  The 
plaintiff  endeavored  to  prove  that  the  hind  shoes  of  horses  were, 
to  use  a  familiar  expression,  "rights  and  lefts."  The  defendant 
•wore  that  this  was  a  total  erroneous  supposition.  His  witnesses 
testified  to  the  same  effect.  Perjury  was  not  attributed  to  any  of 
them.  They  seemed  to  believe  their  own  testimony,  and  the  plain- 
tiff was  not  prepared  with  evidence  to  the  contrary,  as  the  point 
arose  during  the  trial  from  an  examination  of  the  shoe  by  the 
counsel,  who  placed  it  in  the  hands  of  the  defendant,  and  asked 
whether  It  was  not  made  for  the  near  foot.  The  witness  said  it 
would  do  for  either  the  near  or  off  foot.  He  was  then  pressed  as  to 
whether  he  would  put  it  on  either  the  one  or  the  other,  as  it  might 
chance.  He  answered,  yes.  The  nails  were  now  placed  through 
the  holes,  which,  being  properly  beveled,  gave  to  their  points  on 
the  one  limb  of  the  shoe  an  outward  direction,  and  on  the  other 
eide  a  different  inclination.  The  defendant  was  asked  whether, 
looking  at  that  fact,  he  was  prepared  to  say  the  shoe  was  not  made 
for  the  near  foot.  He  said  it  was  not.  He  was  then  asked  how  It 
was  that  the  nails  in  the  two  sides  pointed  at  different  angles? 
Answer:  "It  was  the  fashion."  The  Judge:  "The  fashion  with  all 
farriers?"  Answer:  "Yes."  In  summing  up,  the  learned  judge 
(taking  the  testimony  of  the  witnesses,  and  judging  it,  not  by  its 
truth  but  from  its  effect)  said,  "If  you  find  a  general  mode  of  doing 
a  particular  thing,  you  may  depend  upon  it  there  is  some  good 


116  AMERICAN     ADVOCACY. 

it  need  hardly  be  said  it  will  be  so  much  the  better  for 
his  case;  so,  also,  if,  instead  of  attacking  the  credibil- 
ity of  a  witness,  he  dispute  accuracy,  his  memory  or 
judgment.1 

Juries  never  like  to  believe  that  a  witness  has  com- 
mitted perjury,  especially  if  he  have  no  interest  in 
the  case.  Nor  does  it  please  them  to  hear  character 
assailed.  If  the  advocate  fall  foul  of  the  jury  in  these 
respects,  he  may  as  well  sit  down  for  all  the  good  he 
can  do  his  client.  The  effect  of  the  testimony  then  is 
what  the  advocate  has  to  deal  with  in  reply.  But  if 
it  becomes  necessary,  as  it  sometimes  must,  to  ask  the 
jury  to  disbelieve  a  witness,  and  the  advocate  can  put 
it  on  no  easier  ground  than  that  he  is  untruthful,  he 
should  avoid  doing  it  by  denunciation ;  that  is  only  to 
be  used  in  extreme  cases,  where  virtuous  indignation 
will  do  some  mischief  to  the  inner  man  if  pent  up  long- 
reason  for  so  doing  it,  especially  where  it  obtains  universally  in 
some  mechanical  business.  If  all  farriers  make  horseshoes  with 
beveled  holes  slanting  in  one  direction  on  one  side,  and  in  another 
direction  on  the  other,  you  may  be  sure  that  is  not  done  from 
mere  caprice.  What  is  the  effect  of  the  testimony?  It  is.  to  show 
that  if  the  shoe  on  which  the  nails  slant  in  a  particular  direction 
be  placed  on  the  off  root,  that  they  will  come  out  through  the  hoof 
and  enable  the  farrier  to  clench  them;  but  if  the  shoe  be  fixed  on 
to  the  near  foot,  they  will  have  a  tendency  to  penetrate  the  frog 
of  the  foot,  and  so  cause  pain  and  lameness  to  the  animal.  Tb.3 
question  is,  was  that  the  case  here?  Was  a  shoe,  intended  for  the 
off  foot,  fastened  to  the  near  one?"  The  jury  came  to  the  conclu- 
sion that  that  had  been  the  case  from  the  effect  of  the  evidence: 
the  testimony,  uncontradicted,  being  directly  to  the  contrary. 

i  "Men  are  apt,"  says  \Vhately,  "to  judge  amiss  of  situations, 
persons,  and  circumstances,  concerning  which  they  have  no  exact, 
knowledge,  by  applying  to  these  the  measure  of  their  own  feelings 
and  experience,  the  result  of  which  is  that  a  correct  account  of 
these  will  often  appear  to  them  unnatural  and  an  erroneous  one 
natural." 


THE  REPLY.  ]J7 

er;  but  he  will  find  "half  steam  up,"  will  carry  him 
along  quite  fast  enough  in  any  event.  His  just  indig- 
nation should  only  be  sufficiently  let  off,  that  it  may 
communicate  itself  to  the  pent-up  indignation  of  the 
jury,  and  let  that  off  with  it  in  the  shape  of  a  verdict. 
The  best  way  of  asking  a  jury  to  disbelieve  an  oppo- 
nent's witness  is  to  call  attention  to  the  evidence  of 
one  or  two  of  the  speaker's  own  witnesses.  Some  mat- 
ters will  depend  partly  upon  the  facts  and  partly  up- 
on the  witness'  judgment  or  understanding  of  those 
facts  to  which  he  speaks;  his  view  may  be  entirely 
wrong,  and  his  conclusion,  which  he  puts  forward  as 
a  fact,  wrong  also.1 

§  88.  Importance  to  Be  Attached  to  the  Probabilities 
of  the  Evidence.  — Probabilities  are  of  more  value  than 
possibilities.  Juries,  like  other  people,  attach  more 
weight  to  them.  They  are  extremely  valuable  in  re- 
ply, and  should  be  made  the  most  of.  Opportunities 
which  the  witnesses  had  of  seeing  or  knowing  that 
which  they  depose  to  is  also  a  matter  of  the  highest 
moment.  The  means  of  forming  a  judgment  is  an- 
other, and  all  these  may  be  used  with  a  jury  in  short 

i  Whately  confirms  this  statment.  "If,"  he  says,  "a  person  stages 
he  saw  In  the  East  Indies  a  number  of  persons  who  had  been  sleep- 
ing exposed  to  the  moon's  rays,  afflicted  with  certain  symptoms,  and 
that  after  taking  a  certain  medicine  they  recovered,  he  is  bearing 
testimony  as  to  simple  matters  of  fact;  but  If  he  declare  that  the 
patients  were  so  affected  in  consequence  of  the  moon's  rays — that 
such  is  the  general  effect  of  them  In  that  climate,  his  testimony, 
however  worthy  of  credit,  Is  borne  to  a  different  kind  of  conclusion, 
namely,  not  an  individual,  but  a  general  conclusion,  and  one  which 
will  rest  not  solely  on  the  veracity,  but  also  on  the  judgment  of  th9 
witness. 

"Even  in  the  other  case,  however,  when  the  question  relates  to 
what  is  strictly  a  matter  of  fact,  the  intellectual  character  of  the 
witness  Is  not  to  be  wholly  left  out  of  the  account.  A  man  may  be 
strongly  influenced  by  prejudice — to  which  the  weakest  men  are 
ever  the  most  liable — may  even  fancy  he  sees  what  he  does  not." 


AMERICAN     ADVOCACY. 

and  terse  argument  for  the  purpose  of  obtaining  an 
adverse  opinion  to  the  evidence,  without  the  necessity 
of  asking  them  to  say  it  is  perjured.  The  advocate 
should  exhaust  all  arguments  before  he  comes  to  that, 
unless  he  knows  that  perjury  has  been  committed,  and 
then  he  should  come  to  it  boldly  and  at  once,  without 
giving  the  perjurer  an  opportunity  of  escape.  He  will 
have  observed  that  he  has  left  for  a  moment,  but  for  a 
moment  only,  the  line  marked  out,  of  dealing  with  his 
opponent's  case  before  presenting  his  own.  But  it  is 
necessary,  in  order  to  contrast  the  evidence,  and  will 
materially  assist  him  in  dealing  with  that  of  his  oppo- 
nent. It  will  not  interfere  with  the  course  of  the  ad- 
vocate's argument,  but  will  be  advantageous  to  it 
when  he  comes  to  review  the  facts  of  his  own  case. 

§  89.  Conciseness  in  the  Reply.— At  all  times  the 
advocate  should  be  concise,  but  especially  at  this  stage, 
and  as  short  as  may  be.  If  he  is  not  a  good  speaker 
it  will  be  better  to  be  brief,  because  indifferent  speak- 
ing does  not  tell  very  much ;  and  he  may  well  be  brief 
if  he  is  a  good  speaker,  because  good  speaking  tells  a 
great  deal.  A  good  speech,  however  short,  goes  all 
the  way,  but  a  stretch  of  mere  windy  talk  invariably 
stops  short  of  its  object.  But  even  a  good  speaker 
should  guard  against  smothering  his  points  with  too 
many  words;  the  most  fluent  advocates  require  most 
pruning  at  the  commencement.  All  that  is  wanted  is 
to  so  place  the  facts  that  they  will  stand  out  boldly  de- 
fined, like  fruit  upon  a  wall-tree  where  there  is  not 
too  much  wood.  Almost  a  barrenness  of  language 
rather  than  an  exuberance  will  be  beneficial.  The  ad- 
vocate must  avoid  clothing  a  fact  with  the  drapery  of 
fine  language,  and  also  the  making  too  many  points 
critical  examination ;  and  when  once  made  let  it  alone. 


THE  REPLY.  119 

<§,  90.  The  Use  of  Illustrations  and  Conventional 
Phrases.— There  is  a  matter  which,  but  for  its  con- 
stant recurrence,  it  would  not  be  necessary  to  men- 
tion, and  that  is,  that  conventional  phrases  should,  as 
a  rule,  be  avoided ;  so  should  stale  adages,  which  from 
common  use  become  only  one  remove  from  slang  itself ; 
they  show  a  poverty  of  ideas  and  a  lack  of  originality, 
besides  enfeebling  the  address.  A  man  does  not  do 
himself  justice  when  he  has  recourse  to  a  common- 
place saying  for  the  purpose  of  illustrating  a  point. 
It  is  neither  ornamental  nor  argumentative,  and  is 
more  adapted  to  the  Peep-show  than  the  Forum.  But 
the  great  clanger  attending  commonplaces  is  that  they 
are  so  feeble  and  so  easily  demolished.  "What  is  the 
use  of  "Gentlemen,  there  is  an  old  saying  that  good 
wine  needs  no  bush,"  etc.,  etc.,  against  a  speaker  who 
follows  with  sound,  logical  argument;  or,  if  it  be  a 
matter  of  pure  inference,  who  meets  such  rubbish  with 
th'e  strong  and  forcible  language  of  common  sense? 
The  "old  saying"  may  provoke  a  laugh,  but  the  new 
saying  is  the  one  that  will  make  the  impression.  Not 
that  illustrations  are  to  be  ignored:  they  are  among 
the  most  useful  of  all  the  means  employed  by  the 
rhetorician.  They  bring  home  the  meaning  with  a 
force  and  power  that  nothing  can  surpass ;  but  the  il- 
lustration, if  nothing  else,  should  be  original.  It 
should  be  a  flash  from  the  speaker's  own  mind,  not  a 
mere  reflection  of  someone  else's  lantern,  however 
brilliantly  it  may  burn.* 

§  91.  Appeals  to  Passion  or  Prejudice.— The  advo- 
cate has  already  been  advised  against  a  too  liberal 

i  Whately  says:  "There  Is  very  little,  comparatively,  of  energy 
produced  by  any  metaphor  or  simile  that  is  in  common  use  and 
already  familiar  to  the  hearer."  An  illustration,  however  homely, 
if  original  and  apt,  is  always  pleasing  and  forcible. 


120  AMERICAN     ADVOCACY. 

exhibition  of  emotion.  It  need  scarcely  be  added  that 
appealing  to  the  passions  of  a  jury,  in  reply,  in  a  di- 
rect manner  is  out  of  place  and  unfair.  They  are  not 
to  determine  by  passion  or  feeling,  and  attempts  to 
arouse  the  emotions  may  mislead  the  judgment.  The 
sympathies  of  the  jury  are  a  proper  subject  to  reach 
if  the  advocate  can  do  it  by  the  facts,  and  not  by  mer- 
etricious sentiment ;  this  is  a  legitimate  exercise  of  the 
art  of  advocacy  and  of  the  powers  of  eloquence;  and 
the  art  consists  in  so  presenting  the  facts  that  they 
will  accomplish  that  which  the  advocate  is  forbidden 
to  attempt.  Any  attempt,  however,  to  influence  a  jury 
by  an  appeal  to  their  feelings  is  certain  to  meet  with 
reprobation.  It  is  clumsy  and  coarse,  at  the  best,  and 
as  bad  as  an  open  act  of  intimidation ;  if  the  advocate 
cannot  reach  their  sympathies  without  a  violent  at- 
tack, he  had  better  rest  upon  his  facts  and  reserve  his 
pathos  for  his  client.  Nor  will  he  ever  succeed  .in 
getting  the  judge  with  him  if  he  openly  attempt  to 
introduce  prejudice.  It  is  a  kind  of  rhetorical  burg- 
lary, which  none  but  those  who  cannot  effect  their  ob- 
ject by  other  means  would  ever  perpetrate.  It  is  logi- 
cally wrong,  as  well  as  morally.  If  the  circumstances 
are  such  as  naturally  excite  the  sympathies  of  the  jury 
in  favor  of  the  advocate's  client,  he  has  no  need  to 
make  a  flourish  of  trumpets  to  announce  the  fact;  if 
they  are  not  such,  he  will  fail  to  move  the  jury  by  the 
employment  of  feeble  arts  for  that  purpose;  besides 
which,  he  will  probably  set  the  judge  against  him,  if 
not  against  his  case;  for,  he  may  be  sure  that,  in  his 
desire  to  do  justice  between  the  parties,  the  judge  will 
do  his  best  to  prevent  such  an  advocate  winning  by 
unfair  means. 


THE  REPLY.  121 

<§  92.  A  Temperate  and  Accurate  Style.— A  reply 
should  be  comprehensive  and  compact;  it  should  be 
temperate  as  well  as  bold.  In  its  moderation  will  be 
its  strength.  Violence  of  language  is  invariably  weak ; 
loudness  of  tone  but  a  noisy  accompaniment,  at  the 
best,  which  stuns  the  ear  instead  of  making  the  speak- 
er heard.  With  a  tone  always  above  the  natural  key, 
there  can  be  no  modulation,  which  is  the  music  of  ora- 
tory; the  effect  of  which  is  to  entertain  while  the  feast 
of  reason  proceeds.1 

An  advocate  may  overdo  his  own  facts,  or  say  too 
much  against  those  of  his  opponent;  and  it  is  a  good 
thing  at  the  bar,  as  soon  as  the  advocate  can  do  so,  to 
"let  his  moderation  be  known  unto  all  men."  And 
moderation  in  voice  is  no  less  pleasing  than  in  lan- 
guage. Some  men  shout  so  in  reply  that  one  would 
think  the  jury  some  poor  shipwrecked  wretches  on 
a  rock,  while  one  from  shore  was  trying  to  make  him- 
self heard  above  the  tempest. 

§  93.  The  Peroration.— A  word  as  to  the  peroration, 
which  should  not,  like  the  end  of  a  squib,  be  all  bang, 
nor  like  the  finish  of  a  rocket,  all  stars  above  every 
one's  head.  What  it  should  be  is  a  common-sense  and 
pleasant  finish — attractive,  impressive,  and  as  polish- 
ed as  may  be.  It  should  leave  upon  the  mind  a  pleas- 
ing recollection.  It  should  be  well  constructed,  appro- 


i  Lord  Brougham  said  of  Erskine:  "Juries  have  declared  that 
they  felt  it  impossible  to  remove  their  looks  from  him  when  he  had 
riveted,  and,  as  it  were,  fascinated  them  by  his  first  glance.  Then 
hear  his  voice  of  surpassing  sweetness,  clear,  flexible,  though  ex- 
quisitely fitted  to  strains  of  earnestness."  "His  action,"  says 
Espinasse,  "was  always  appropriate,  chaste,  easy,  natural,  *  *  * 
the  tones  of  his  voice,  though  sharp,  were  full,  destitute  of  any 
tinge  of  Scotch  accent,  and  adequate  to  any  emergency — almost 
scientifically  modulated  to  the  occasion." 


122  AMERICAN    ADVOCACY. 

priate  and  short.  As  the  exordium  is  intended,  with 
a  few  well-chosen  words,  to  secure  the  hearer's  atten- 
tion, so  the  peroration  is  designed  to  leave  upon  his 
mind  the  satisfaction  that  his  attention  has  been  well 
bestowed.1 

i  The  following  is  a  peroration  from  Erskine's  speech  for  the 
Bishop  of  Bangor,  which  may  be  useful  as  something  more  than  R 
mere  example  of  peroration: 

"I  cannot  endure  the  humiliation  of  fighting  witii  a  shadow  and 
the  imprudence  of  giving  importance  to  what  I  hold  to  be  nothing. 
by  putting  anything  in  the  scale  against  it,  a  conduct  which  would 
amount  to  a  confession  that  something  had  been  proved  which  de- 
manded an  answer.  How  far  those  from  whom  my  instructions 
come  may  think  me  warranted  in  pursuing  this  course,  I  do  not 
know;  but  the  decision  of  that  question  will  not  rest  with  either 
of  us,  if  your  good  sense  and  consciences  should,  as  I  am  persuaded 
they  will,  give  an  immediate  and  seasonable  sanction  to  this  conclu- 
sion of  the  trial." 


CHAPTER  X. 


CONDUCT  OF  A  CRIMINAL  PROSECUTION. 


§  94.  Order  of  a  Criminal  Trial. 

95.  Prosecution     not     Persecu- 

tion. 

96.  Opening  Statement — Avoid- 

ing  Argument. 

97.  Opening  Statement — Avoid- 

ing Exaggeration. 

98.  Opening      Statement — Con- 

ventional -and  Undig- 
nified Phrases. 

99.  Opening     Statement — Stat- 

ing Personal  Belief  as  to 
Guilt  of  Accused. 

100.  Opening   Statement — Inter- 

preting the  Indictment, 
to  the  Jury. 

101.  Opening     Statement — Only 

Facts  Bearing  Directly 
on  the  Issue  to  be 
Stated. 

102.  Opening       Statement — -An- 

ticipating the  Defense. 


§103.  The    Evidence — Order    and 
Arrangement. 

104.  The    Evidence — Overlaying 

the  Case  with  Too  Much 
Evidence. 

105.  The  Evidence— Police  Tes- 

timony   Not   to    be    Im- 
plicitly Relied  Upon. 

106.  The  Evidence — Concentrat- 

ing Attack  on  Main  De- 
fenses of  Accused. 

107.  The  Evidence — Taking  Ad- 

vantage of  the  Defend- 
ant's Cross-Examination. 

108.  The     Evidence  —  How     to 

Break    Down    a     False 
Alibi. 

109.  Closing    Address — Temper- 

ate Reply  versus  "Earn- 
est Appeal." 


§  94.  Order  of  a  Criminal  Trial.— The  first  thing  in 
a  criminal  trial  is  the  arraignment  of  the  accused.  To 
arraign  the  accused  in  criminal  practice  is  to  bring 
the  prisoner  to  the  bar  of  the  court  to  answer  the  mat- 
ter charged  upon  him  in  the  indictment.  The  proce- 
dure consists  in  calling  upon  the  prisoner  by  name  and 
stating  the  charge  against  him,  or,  if  he  demands  it, 
reading  to  him  the  indictment  and  demanding  of  him 


124  AMERICAN     ADVOCACY. 

whether  he  be  guilty  or  not  guilty,  and  entering  hid 
plea.1  To  the  arraignment  accused  may  either  plead 
guilty  or  not  guilty  or  " stand  mute."  If  the  accused 
refuses  to  plead,  the  court  instructs  a  plea  of  not  guil- 
ty and  the  trial  proceeds  as  if  the  accused  had  so  plead- 
ed. 

After  arraignment  accused  has  opportunity  to  in- 
terpose certain  motions  more  or  less  vexatious  in 
their  nature  as  a  general  rule.  He  may  seek  a  dis- 
charge on  motion  on  such  grounds  as  former  jeopardy, 
denial  of  a  speedy  trial  to  his  prejudice,  and  for  pros- 
ecution on  information  without  good  cause  shown 
where  grand  jury  failed  to  indict.  He  may  enter  a 
demurrer  to  the  indictment  or  he  may  move  to  quash 
the  indictment  on  many  and  various  grounds.  He 
may  ask  for  change  of  venue  or  removal  of  cause.  If 
the  charge  against  the  accused  is  indefinite  he  may 
demand  a  bill  of  particulars.  He  may  demand  also  a 
list  of  the  witnesses  testifying  against  him.  He  then 
enters  his  formal  plea  to  the  indictment.  After  that 
he  may  ask  for  a  postponement  or  continuance  of  the 
trial  on  certain  grounds. 

The  selection  of  the  jury  is  the  next  important  stage 
in  the  proceedings.  Before  this  is  done,  however,  the 
prosecuting  officer  has  the  right  to  enter  a  nolle  prose- 
qm?  Before,  also,  the  actual  selection  of  the  jury  ac- 

1  The  arraignment  of  the  accused  must  be  the  first  step  In  the 
progress  of  the  trial;   It  must  precede  the  impaneling  of  the  Jury 
and  the  hearing  of  the  evidence;   and  failure  to  so  arraign  the  de- 
Tendant  is  reversible  error,  which  is  not  cured  by  arraignment  after 
the   trial   has   begun.     Abbott's   Criminal   Trial   Brief,   p.   25,   and 
cases  cited. 

2  After  the  jury  is  sworn  the   defendant  acquires  the  right  to 
have  the  cause  disposed  of  by  its  verdict;  and  if,  without  cause  or 


CONDUCT  OF  A  CRIMINAL  PROSECUTION.  125 

cused  may  interpose  a  demand  for  a  copy  of  the  panel ; 
he  may  enter,  on  various  grounds,  a  challenge  to  the 
array  or  entire  panel.  After  these  interruptions,  if 
entered,  have  been  overcome,  the  parties  must  at  once 
proceed  to  the  task  of  selecting  a  trial  jury. 

Following  the  selection  and  "swearing  in"  of  the 
jury  come  the  opening  statements  of  the  prosecution 
and  the  defense,  about  which  we  shall  have  more  to 
say  in  subsequent  sections.  Then  follow  in  a  regu- 
lar, and,  as  a  general  rule,  uninterrupted  order  the 
introduction  of  evidence,  the  closing  addresses — the 
summing  up  and  reply — of  counsel,  and  the  charge, 
instructions  or  summing  up  of  the  court  to  the  jury, 
after  which  the  fate  of  the  defendant  is  in  the  hands 
of  the  "twelve  good  men  and  true." 

§  95.  Prosecution  Not  Persecution.— Above  every- 
thing, it  is  important  that  the  prosecutor  should  ex- 
hibit no  feeling  in  the  conduct  of  a  prosecution.  He 
is  not  the  offended  party  nor  the  minister  of  justice, 
as  he  is  sometimes  erroneously  called.  He  is  the  pre- 
senter of  the  accused  at  the  bar  of  justice,  and  is  the 
last  person  who  should  exhibit  emotion.  There  should 
appear  no  anxiety  on  the  part  of  the  counsel  to  obtain 
a  conviction.  Whoever  the  accused  may  be,  and  who- 
ever the  accuser,  and  whatsoever  the  nature  of  the 
charge,  there  should  appear  but  one  unswerving  de- 
sire on  the  part  of  the  advocate,  namely,  to  lay  the 
facts  of  the  case  before  the  tribunal  which  is  to  judge 
of  them.  Inflexible  justice  is  required  on  the  part  of 
him  who  sometimes  calls  himself  its  minister.  Neither 

the  defendant's  consent,  a  nolle  prosequi  is  entered  and  the  jury 
discharged,  this  amounts  to  an  acquittal,  which  the  defendant  may 
set  up  as  a  defense  to  a  subsequent  prosecution  for  the  same 
offense.  Abbott's  Criminal  Trial  Brief,  p.  197,  and  cases  cited. 


126  AMERICAN     ADVOCACY. 

the  shocking  nature  of  the  crime,  nor  the  heinous  char- 
acter  of  the  accused,  nor  the  exalted  rank  of  the  accu- 
ser, nor  any  other  circumstance,  should  disturb  the 
mind  or  temper  of  the  advocate. 

But  it  is  not  in  prosecutions  for  crimes  of  the  deep- 
er guilt  that  the  danger  of  excited  feelings  has  to  be 
guarded  against.  In  these  there  is  generally  too  much 
of  the  sepulchral  tone  and  manner,  as  though  the 
wretched  criminal  were  delivering  his  last  dying 
speech  and  confession  by  proxy.  It  is  in  cases  such 
as  libel,  where  the  circumstances  may  be  particularly 
aggravated  and  the  accuser  a  person  of  distinguished 
position  in  society;  or  it  may  be  in  some  other  misde- 
meanor of  the  social  sort,  where  mortal  vindictiveness, 
rather  than  divine  justice,  seems  occasionally  to  be  the 
inspirer  if  not  the  director  of  the  proceedings. 

But  whatever  may  be  the  nature  of  the  charge  or 
the  quality  of  accused  or  accuser,  let  there  be  no  feel- 
ing— at  least,  no  manifestation  of  it.  Nothing  can  be 
worse,  either  as  a  matter  of  abstract  justice,  or  as  a 
matter  of  mere  advocacy.  A  man  who  throws  feeling 
into  a  prosecution,  awakens  an  opposite  sentiment  in 
favor  of  the  accused.  The  sense  of  fair  play,  which 
every  American  is  credited  with  possessing,  is  out- 
raged by  an  attempt  to  convict  a  man  by  declamation 
and  angry  expression.  Is  he  guilty?  That  is  the  ques- 
tion. The  prosecutor  is  not  to  denounce  the  crime; 
that  has  no  doubt  been  committed  by  some  one,  and 
is  none  the  deeper  or  the  wickeder,  denounce  it  as  he 
will;  he  is  not  to  denounce  the  man;  the  latter  may 
not  be  guilty;  and  if  not,  shall  the  innocent  be  de- 
nounced? He  may  be  guilty;  what,  then,  is  the  pros- 
ecutor his  judge  or— his  executioner?  So  that  he  will 
be  none  the  worse,  and  none  the  better,  the  crime  no 


CONDUCT  OF  A  CRIMINAL  PROSECUTION.  127 

deeper,  and  the  charge  no  nearer  proof,  by  declama- 
tion or  anger.  Accused  persons  have  been  known  to 
be  acquitted  through  a  too  intense  desire  to  convict; 
especially  in  cases  where  self-constituted  bodies  of 
men  support  the  public  morality  by  public  subscrip- 
tions. 

§  96.  Opening  Statement— Avoiding  Argument.— 
Another  error  to  avoid  is  argument  at  the  opening 
of  the  case  for  the  prosecution.1  At  this  stage  there 
is  nothing  to  argue  (unless  the  prosecutor  wants  to 
argue  that  he  is  telling  the  truth),  and  its  principal 
effect  will  be  to  throw  doubt  on  his  case.  Facts  that 
require  nursing  the  moment  they  are  presented  must 
be  weak  indeed ;  and  the  prosecutor  may  depend  upon 
it,  such  swaddling  clothes  will  never  keep  life  in  them. 
What  can  be  stronger  or  healthier  than  a  plain  state- 
ment of  a  simple  fact?  Aye,  but  if  it  be  not  a  simple 
fact,  but  a  series  of  compound  facts,  what  then?  It 
is  a  mere  matter  of  arithmetic.  Reduce  the  com- 
pounds to  simples;  and  for  such  analysis  there  is  no 
need  for  argument.  The  best  opening  of  a  case  for 
the  prosecution  is  a  clear  and  concise  statement  of 
facts,  without  embellishment,  without  argument,  and 
without  feeling.  It  may  be  necessary  to  explain  mat- 
ters, or  to  separate  them,  or  to  connect  them,  or  to 
treat  them  in  some  other  manner  by  way  of  elucida- 
tion; but  it  is  never  necessary,  and  is  therefore  bad 
advocacy  to  color  them,  or  in  any  way  to  alter  their 
appearance,  or  apply  to  them  a  far-fetched  and  possi- 
bly foreign  meaning.  Moreover,  such  a  practice  very 

i  Opening  statements  should  consist  of  a  presentation  of  the  facts 
Intended  to  be  given  in  evidence  by  the  respective  parties,  to  the 
exclusion  of  argument  and  irrelevant  and  prejudicial  mattera 
Hochheimer  on  Crimes  and  Criminal  Procedure  (1897),  §  241. 


128  AMERICAN     ADVOCACY. 

often  furnishes  ground  for  a  reversal,  if  the  accused 
be  convicted.1 

§  97.  Opening  Statement— Avoiding  Exaggeration. 
—Again,  all  exaggeration  is  to  be  avoided;  the  pros- 
ecutor should  neither  magnify  that  which  he  can  prove, 
nor  open  a  single  fact  that  he  cannot.  It  is  not  only 
bad  as  a  matter  of  advocacy,  but  dishonest  as  a  mat- 
ter of  morality.  As  the  jury  approaches  the  evidence 
of  the  case  by  way  of  examination,  the  facts  should 
expand  upon  the  view  rather  than  diminish;  as  dimin- 
ish they  must  if  the  prosecutor  exaggerate  them  in 
his  opening.  No  art  should  be  employed  for  the  mere 
purpose  of  convicting  a  prisoner,  but  there  should  be 
no  abandonment  of  it  because  a  crime  happens  to  be 
the  subject  of  the  prosecutor's  advocacy.  It  is  his 
duty  to  convince  the  jury  of  the  guilt  of  the  accused 
if  he  can  do  so  fairly.  To  accomplish  this  he  must 
present  the  facts  in  their  natural  order  (which  is  art), 
and  in  the  most  comprehensive  manner  (which  is  art), 
and  in  the  most  simple  manner  (which  also  is  art). 
But  before  all  things,  before  even  the  conviction  of 
the  guilty,  it  should  be  the  prosecutor's  care  to  re- 
frain from  stating  the  smallest  matter  which  in  his 
conscience  he  does  not  believe  to  be  capable  of  proof. 
If,  inadvertently,  this  be  done,  as  indeed  it  must  some- 
times from  erroneous  instructions,  he  should  spare 
no  pains  to  disabuse  the  minds  of  the  jury  of  the  im- 

i  Thus  it  was  held  in  a  certain  case  that  an  opening  address  in  a 
criminal  case,  made  by  the  district  attorney  against  objection,  con- 
taining not  only  a  statement  of  the  evidence  which  it  was  expected 
•would  be  introduced,  but  also  a  full  and  exhaustive  argument  of 
the  case,  much  of  which  was  based  upon  a  state  of  facts  which  did 
not  appear  in  the  evidence,  furnished  ground  for  reversal  of  a 
judgment  of  conviction.  State  v.  Williams,  63  Iowa,  140,  18  N.  W. 
Rep.  682. 


CONDUCT  OF  A  CRIMINAL  PROSECUTION.  129 

pression  which  such  a  statement  may  have  made.  He 
never  can  tell  what  effect  a  word  may  have ;  a  verdict 
may  be  influenced  by  the  most  trifling  observation. 
For  this  reason  he  should  instantly  repair  any  mistake 
which  may  operate  against  the  accused. 

§  98.  Opening  Statement— Conventional  and  Undig- 
nified Phrases.— Another  error,  very  frequently  com- 
mitted, should  by  all  means  be  avoided — that  of  tell- 
ing a  jury  that  the  advocate  thinks  he  shall  be  able  to 
prove  so-and-so ;  or  he  thinks  he  shall  be  able  to  show 
so-and-so.  This  is  unfair  to  the  prisoner,  if  he  fails, 
and  is  extremely  weak,  if  he  succeed.  What  he  knows 
he  can  prove,  open;  what  he  is  doubtful  about,  leave 
for  the  evidence.  Need  it  be  said  that  expressions 
such  as  "How  on  earth  could  the  prisoner  have  known 
so-and-so?"  and,  "How  on  earth  could  he  have 
thought  so-and-so?"  should  be  avoided,  and  that  lan- 
guage, such  as  "It  is  a  lie!  gentlemen,"  is  not  grace- 
ful or  dignified?  Nor  should  the  counsel  for  the  pros- 
ecution assume  to  himself  the  office  of  defending  the 
prosecutor  or  prosecutrix,  as  the  case  may  be.  He 
may  do  so  in  the  most  efficient  manner,  if  he  be  a  skill- 
ful advocate ;  but  that  must  not  appear  to  be  the  main 
object  of  the  prosecution.  If  Caesar's  wife  be  above 
suspicion,  she  will  need  no  defender:  and  it  will  be  no 
compliment  to  say  that  the  advocate  is  there  for  the 
purpose  of  vindicating  her  character. 

§  99.  Opening  Statement— Stating  Personal  Belief 
as  to  Guilt  of  Accused.— The  next  thing  for  the  prose- 
cutor to  remember  is,  never  to  say  the  prisoner  is 
guilty.  It  is  an  utterly  useless  expression,  and  seems 
to  imply  that  the  prosecutor  has  a  feeling  in  the  mat- 
ter, even  when  he  may  have  none.  He  has  to  lay  the 
facts  before  the  jury  from  which  no  other  inference 

9 


130  AMERICAN     ADVOCACY. 

than  that  of  guilt  can  reasonably  arise.  Guilty  is  the 
sum  total  of  inferences  and  probabilities  arising  from 
the  facts,  and  is  to  be  pronounced  only  by  those  who 
are  sworn  to  try  whether  he  be  guilty  or  not  guilty. 

§  100.  Opening  Statement— Interpreting  the  Indict- 
ment to  the  Jury.— The  charge  against_  the  prisoner 
should  be  stated  clearly  and  concisely.  It  is  not  al- 
ways stated  clearly  and  concisely.  The  judge,  gener- 
ally, has  to  tell  the  jury,  after  all  the  speeches  and  all 
the  evidence,  what  the  charge  is  and  what  is  the  nature 
of  the  charge.  It  is  remarkable  that  young  advocates, 
as  a  rule,  both  in  prosecuting  and  defending,  leave  out 
the  offense  stated  in  the  indictment.  Now,  there  are 
many  ways  of  stating  a  charge,  but  there  is  only  one 
way  to  inform  the  minds  of  the  jury  of  the  offense 
which  the  accused  is  alleged  to  have  committed.  And 
the  first  thing  necessary  is  to  strip  it  of  the  legal  jar- 
gon in  which  it  is  enfolded.1  The  advocate  is  the  inter- 
preter of  this  unknown  thing  to  the  people  or  "the 
country."  Inwrapped  as  the  simple  matter  is  in  the 
manifold  incumbrances  and  technicalities  of  the  law, 
how  is  a  mortal  common  sense  jury  to  know  whether 
the  enfolded  thing  before  them  be  a  wolf  or  one's 
grandmother?  Unless  they  understand  the  nature  of 
the  charge  they  will  never  appreciate  thoroughly  the 
finer  points  of  the  evidence,  which  may  be  so  impor- 


i  Since  the  days  of  Babel  there  has  been  no  mortal  language  less 
understood  of  the  people  than  the  lawyers'  dialect;  no  man,  how- 
ever deep  in  linguistics,  will  ever  be  deep  enough  to  get  to  the 
bottom  of  that  unfathomable  vortex.  If  a  person  desires  to  enjoy 
a  piece  of  real  humor,  watch  a  jury  while  they  listen  to  a  prisoner 
being  "given  in  charge"  on  some  skillfully  worded  indictment, 
with  complications  enough  to  baffle  the  father  of  all  worldly  com- 
plications himself. 


CONDUCT  OF  A  CRIMINAL  PROSECUTION.  131 

tant  to  lead  them  to  a  just  conclusion.  The  advocate 
must  learn,  therefore,  to  put  the  meaning  of  indict- 
ments into  every-day  language,  and  then  he  will  reduce 
it  to  simplicity  in  a  few  words. 

§  101.  Opening  Statement— Only  Facts  Bearing  Di- 
rectly on  the  Issue  to  Be  Stated.— Now  come  the  facts; 
but  be  it  remembered  that  nothing  is  to  be  stated  re- 
mote or  near,  that  has  not  a  direct  bearing  upon  the  is- 
sue. Everything  that  may  prejudice  the  jury — as  the 
advocate  loves  an  easy  conscience  and  values  his  own 
character  for  honesty — must  be  carefully  excluded; 
and  above  all  things  he  should  avoid  doing  in  an  ob- 
lique manner  that  which  it  would  be  unfair  to  do  di- 
rectly. Nor  is  this  warning  unnecessary.  Many  have 
erred  inadvertently  in  their  zeal  for  the  "administra- 
tion of  justice,"  who,  in  a  matter  of  private  and  social 
concern,  would  guard  themselves  from  the  faintest 
appearance  of  unfairness.  The  prosecutor  is  not  to 
be  what  is  known  in  some  proceedings  as  a  "devil's 
advocate,"  employed  when  they  desire  to  "canonize" 
a  lady  or  gentleman.  He  is  not  required  to  canonize 
the  prisoner,  but  to  do  him  as  much  justice  as  if  he 
had  some  sorrow  for  his  situation. 

The  rule,  simply  stated,  is  that  the  prosecuting  at- 
torney has  a  right  to  state  in  his  opening  only  those 
facts  which  the  prosecution  intends  to  prove,  but  not 
those  of  which  he  cannot  offer  competent  evidence.1 

i  The  counsel  for  the  accused  has  a  right  to  interpose  and  object 
to  any  impropriety  of  the  prosecuting  counsel  in  the  opening,  and, 
If  the  court  allow  him  to  proceed  therein,  to  take  an  exception  to 
the  ruling,  and  to  request  an  instruction  to  the  jury  to  correct  the 
effect  of  such  impropriety.  Abbott's  Criminal  Trial  Brief,  p.  291, 
and  cases  cited.  "But  the  purpose  of  the  opening  address,"  says 
Mr.  Abbott,  "is  to  inform  the  jury  as  to  the  nature  of  the  case  in 
hand,  and  while  deliberate  misstatement  of  fact  calculated  to  prej- 


132  AMERICAN     ADVOCACY. 

§  102.  Opening  Statement— Anticipating  the  De- 
fense.—In  proceeding  with  his  statement  there  is  often 
a  danger  of  the  advocate  being  led  into  an  anticipation 
of  the  defense  that  will  be  set  up  either  to  the  whole 
or  to  any  portion  of  it.  This  ought  never  in  a  pros- 
ecution to  be  yielded  to,  if  for  no  other  reason,  at  least 
for  the  very  obvious  one  that,  if  the  prisoner  be  de- 
fended, the  prosecution  has  the  right  of  replying.  Such 
expressions  as,  "It  may  be  said  by  my  learned  friend," 
etc.,  are  not  legitimately  a  part  of  an  opening  state- 
ment. But  it  is  by  no  means  improper  in  favor  of  the 
accused  to  present  that  view  of  the  fact  which  the  ad- 
vocate finds  himself  obliged  to  deal  with  and  dispose 
of.  The  moment  he  shows  himself  eager  to  convict, 
the  jury  will  suspect  him,  or  the  prosecutor,  of  vindic- 
tive feeling,  one  of  the  worst  symptoms  to  manifest 
either  at  the  bar  or  in  the  witness-box. 

§  103.  The  Evidence— Order  and  Arrangement.— 
"Order  and  arrangement" —these  must  be  observed 
if  the  advocate  wish  the  jury  thoroughly  to  understand 
the  statement  he  has  to  make.  As  the  advocate  opens 
his  case,  so  should  the  witnesses  be  called  to  prove  it ; 
the  continuity  of  circumstances  must  not  be  broken, 
although  there  may  be  divers  branches  of  the  subject ; 
there  may  be  many  chapters,  but  they  were  enacted  in 
order  in  the  real  history  he  is  unfolding.  The  advo- 
cate will  sometimes  find  that  the  depositions  are  con- 
fused and  complicated.  Before  the  magistrates,  where 
evidence  is  taken  in  portions,  as  it  is  obtained,  and  in 
the  course  of  many  adjournments  or  remands,  it  is 

udice  the  accused,  and  not  corrected  by  the  court,  would  be  ground 
for  reversal,  the  rule  is  different  where  facts  are  honestly  stated 
with  the  expectation  of  proving  them,  which,  through  some  unfore 
seen  circumstances,  counsel  fails  to  do." 


CONDUCT  OP  A  CRIMINAL  PROSECUTION.  133 

next  to  impossible  to  follow  any  rule  in  this  respect. 
But  it  will  be  the  advocate's  duty  to  separate  and  ar- 
range the  various  portions  of  evidence  before  present- 
ing them  to  the  jury. 

§  104.  The  Evidence— Overlaying  the  Case  with  too 
Much  Evidence.— "Overlaying  the  case,"  as  it  is 
called,  is  a  dangerous  proceeding.  It  is  like  taking 
a  feather  bed,  bolster  and  two  pillows  to  smother  a 
mouse  with,  when  the  feather  bed  would  be  amply  suffi- 
cient if  well  applied.  A  number  of  witnesses  cannot 
agree  on  all  points.  We  do  not  mean  in  words,  be- 
cause that  would  at  once  damn  their  evidence,  but  as 
to  facts  themselves,  and  if  the  advocate  call  a  number 
of  witnesses,  the  chances  are  that  he  will  call  a  num- 
ber of  contradictions,  and  the  moment  he  gets  one  wit- 
ness to  contradict  another  upon  any  point  how  little 
material  soever,  if  it  be  material,  the  jury,  as  a  rule, 
will  determine  that  portion  of  the  evidence  in  favor  of 
the  accused,  unless  other  circumstances  lead  them  to 
a  different  conclusion.  The  advocate  will  have  given 
him  already  the  benefit  of  one  doubt.  Then,  again, 
among  the  multitude  may  creep  in  some  one  or  two  of 
a  disreputable  kind ;  the  advocate  may  not  know  them, 
but  his  "learned  friend,"  if  he  have  any  skill,  will  soon 
introduce  them  to  him;  and  if  their  character  or  evi- 
dence be  "shaky,"  as  it  is  called  forensically,  it  will 
lower  the  average  of  the  whole;  at  all  events  the  mer- 
its of  his  case  will  sink  with  it.  It  requires  a  number 
of  respectable  witnesses  to  buoy  up  a  case  laden  with 
one  whose  character  renders  him  unworthy  of  belief.1 

i  We  may  here  mention  one  very  important  English  case  in 
which  the  Crown  was  cruelly  hoodwinked.  It  was  a  case  of  murder. 
A  very  bad  case.  Horribly  brutal.  The  public  were  shocked  and 
intensely  interested  throughout  the  length  and  breadth  of  the  land. 


134  AMERICAN     ADVOCACY. 

§  105.  The  Evidence— Police  Testimony  Not  to  Be 
Implicitly  Relied  Upon.— Another  matter  to  be  on  one's 
guard  against,  is  being  overdone  by  police  testimony. 
Very  few  policemen  are  really  untruthful;  and  very 

It  was  a  murder  that  ranks  among  the  great  murders  of  the  world. 
In  consequence  whereof  there  was  more  bungling  among  the  police 
and  more  conflict  among  police  authorities  than  usual.  Borough 
police  and  Scotland  Yard  almost  taking  one  another  up  if  not  knock- 
Ing  one  another  down.  All  this  is  a  thing  of  yesterday  to  one's 
recollection.  When  the  police  had  laid  hold  of  the  supposed  mur- 
derer, what  scenes  were  enacted  at  the  police  court  day  by  day, 
and  how  the  conflicting  "authorities,"  with  official  and  non-official 
jealousy,  proceeded  on  the  uneven  tenor  of  their  way  as  well  as 
other  people's  way!  For  it  was  a  great  and  notable  murder. 

But  what  is  more  to  our  point  is  not  the  notoriety  or  jealousy, 
or  the  degrees  of  activity  or  non-activity  of  intelligent  or  non- 
intelligent  officers,  but  the  Crown  Institution  itself,  and  its  staff 
for  taking  down  the  "proofs."  The  "proofs"  came  thick  and  fast 
one  may  be  sure;  almost  everybody  had  a  "proof."  The  whole 
country  seemed  to  have  been  called  from  its  avocations  to  see  the 
murder  done.  The  prisoner  was  seen  here  and  seen  there;  he  was 
buying  in  this  shop  and  visiting  in  that;  he  was  singing  in  one 
place  and  dancing  in  another;  courting  in  one  lonely  spot  and  mur- 
dering in  another.  There  never  were  so  many  "clews"  to  a  single 
crime.  At  last  the  perpetrator  of  one  horrible  murder,  at  all  events, 
to  the  satisfaction  of  one  section  of  the  police,  would  be  brought 
to  justice.  It  would  make  up  for  many  undiscovered  and  thrilling 
crimes.  Let  no  one  henceforth  say  the  police  cannot  "find  out 
anything."  Into  the  office  where  they  take  the  evidence,  or  "proofs," 
there  stepped  witness  after  witness — scores  of  witnesses.  Evidence 
was  taken  down,  sifted,  weighed,  measured,  as  it  might  have  been, 
by  the  yard;  and  there  stepped  in  among  the  crowd  one  or  two  of 
the  simplest-looking,  "innocentesf'-looking  young  men  that  could 
be  found  in  all  London,  and  an  innocent-looking  woman  or  two. 
Now,  the  Crown,  being  incapable  of  doing  any  wrong,  is  equally  in 
capable  of  thinking  any  evil;  so  it  thought  none  of  these  interesting 
witnesses  who  gave  their  story  with  solemn  faces,  and  went  away 
with  proper  subpoenas  in  their  pockets. 

The  trial  came  on,  as,  after  so  much  elaborate  preparation,  it  was 
only  proper  that  it  should;  and  the  evidence  looked  uncommonly 
black  against  the  unhappy  prisoner.  An  anxious  and  highly  sensa- 
tional public  watched  for  justice  to  be  avenged.  But  it  was  curious 


CONDUCT  OF  A  CRIMINAL  PROSECUTION.  135 

few  would  unnecessarily  "pile  on  the  evidence" 
against  a  man ;  but  all  are  zealous,  and  zeal  is  a  force, 
as  we  all  know,  that  will  sometimes  impel  us  beyond 
the  boundary  line  of  discretion.  They  require  to  be 
kept  in  with  a  steady  and  firm  hand,  for  much  zeal  on 
their  part,  like  too  much  anxiety  on  the  part  of  the 
prosecutor,  is  sure  to  operate  against  what  the  pros- 
ecution invariably  calls  "the  interest  of  public  jus- 
tice." 

§  106.  The  Evidence— Concentrating  Attack  on  Main 
Defenses  of  Accused.— There  are  two  answers  only  to 
a  charge — one  in  law,  the  other  in  fact.  These  resolve 
themselves  in  practice  to  three:  1.  The  prisoner  is 
not  the  man  (mistaken  identity) ;  2.  No  intention  to 
commit  the  act.  3.  The  act  was  never  committed.  We 
are  speaking  now  of  the  nature  of  crimes  and  misde- 
meanors generally  with  which  advocates  have  to  deal 
in  the  police  courts;  but  we  are  not  certain  that  we 
should  not  be  perfectly  accurate  if  we  applied  the 
statement  to  the  whole  of  the  offenses  in  the  statute 
book  and  at  common  law.  It  is  under  one  or  other  of 
these  heads  that  the  various  "defenses"  will  range 
themselves :  insanity,  no  proof  of  property,  no  guilty 

• 

that  amid  the  Crown  witnesses,  interspersed,  were  witnesses  who 
made  some  matters  deposed  to  impossible,  who  undid  fastenings 
and  knocked  the  heads  off  several  of  the  Government  rivets;  in  fact, 
who  seemed  altogether  to  upset  the  elaborately  constructed  evi- 
dence of  the  prosecution.  The  prosecution  became  confused,  looked 
at  the  notes  taken  down  at  the  institution,  compared  them  with  the 
evidence  in  court  to-day,  questioned  the  witnesses — no  use,  there 
were  contradictions,  irreconcilable  disagreements,  all  in  favor  of  the 
prisoner.  Dates  were  wrong;  prisoner  was  in  two  or  three  places 
at  once.  And  so  it  went  on,  until  the  judge  summed  up.  The 
judge  did  not  reconcile  the  discrepancies — could  not,  in  fact:  jury 
never  attempted  to.  So  the  man  was  acquitted.  Evidence  not  suf 
ficient  because  too  much. 


136  AMERICAN     ADVOCACY. 

knowledge,  consent,  and  so  on.  This  being  the  case, 
the  first  step  in  arranging  and  pointing  the  evidence  is 
to  ascertain  what  can  be  disputed  and  what  is  incap- 
able of  denial.  A  prisoner  perhaps  cannot  deny  that 
he  did  a  certain  act.  He  is  either  justified  then  in  law, 
or  excused  on  the  ground  of  insanity,  or  affirms  that 
he  had  no  guilty  knowledge  or  intent,  or  that  there 
was  consent  to  what  was  done.  It  will  be  easily  per- 
ceived where  the  points  of  the  prosecution  will  require 
to  be  made  good.  If  the  prosecution  expend  the  force 
of  its  evidence  to  prove  identity  when  the  main  de- 
fense is  no  guilty  knowledge,  or  intent  to  defraud,  a 
rogue  may  escape  from  justice  for  want  of  mere  for- 
ensic skill  on  its  part,  as  he  may  from  a  policeman  for 
want  of  handcuffs.1 

§  107.  The  Evidence— Taking  Advantage  of  the  De- 
fendant's Cross-Examination. — It  is  not  necessary  to 
repeat  what  has  been  said  in  a  former  part  of  this 
work  with  reference  to  the  cross-examination  for  the 
prisoner.  The  advocate  may  be  sure  that  a  copious 
shower  of  questions  from  his  opponent  will  rain  down 
some  fact  or  other  which  will  assist  the  prosecution. 
He  must  be  a  skillful  advocate,  indeed,  who  in  a  long 
cross-examination  elicits  no  facts  against  himself,  or 
lets  in  no  evidence  which  will  add  a  burden  to  his  de- 
fense. The  prosecuting  officer  will,  therefore,  watch 


i  A  man  was  once  tried  for  emblezzling  money,  the  price  of  hay 
which  he  had  taken  from  a  rick  belonging  to  his  employer  and  sold. 
There  was  no  proof  that  he  had  ever  had  the  money,  and  if  he  had 
there  was  no  proof  that  he  had  received  it  for  and  on  account  of 
his  master.  It  was  contended  that  if  it  was  anything  it  was  steal- 
ing the  hay.  So  he  was  acquitted  and  charged  with  stealing  the 
hay.  Argued  that  if  it  was  anything  it  was  embezzling  the  money, 
for  he  had  authority  to  sell  the  hay.  Acquitted.  Not  because  he 
was  not  guilty. 


CONDUCT  OF  A  CRIMINAL  PROSECUTION.  137 

every  question,  and  note  the  answer  if  it  requires  to  be 
re-examined  upon  or  commented  upon  in  the  sum- 
ming-up or  reply.  Men  have  been  convicted  through 
being  defended  by  injudicious  advocates,  and  many  a 
rogue  has  escaped  through  the  incapacity  of  the  advo- 
cate for  the  prosecution.  The  greatest  lawyer  that 
ever  lived  might  be  no  advocate,  and  without  a  large 
experience  of  mankind  no  man  can  be  a  good  one.  But 
the  young  advocate  must  get  experience  somewhere; 
somebody  must  be  the  patient  for  him  to  practice  upon 
for  the  benefit  of  the  healthy  body  corporate.  He 
should,  however,  learn  as  far  as  possible  by  the  blun- 
ders of  others  rather  than  his  own,  and  will  have  a 
fair  opportunity  of  doing  so  while  engaged  in  a  pros- 
ecution by  carefully  watching  and  noting  where  a 
question  is  clumsy  merely,  and  where  it  is  wrong;  by 
considering  how  questions  should  be  asked,  and,  more 
important  still,  how  they  should  be  framed,  so  as  to 
bring  no  harm  to  his  case  and  as  much  good  as  possi- 
ble. Law,  only,  will  not  make  an  advocate  any  more 
than  a  balance-pole  will  enable  one  to  walk  a  tight- 
rope. 

§  108.  The  Evidence— How  to  Break  Down  a  False 
Alibi.— We  come  now  to  a  subject  which  has  always 
been  considered,  in  criminal  cases  especially,  one  of 
the  most  difficult  tasks  that  presents  itself  to  the  pros- 
ecutor. It  is  that  which  is  known  under  the  title  of  a 
false  alibi;  that  is,  where  an  alibi  is  set  up,  and  every 
fact  is  true  except  the  date.  It  has  been  said  that  an 
alibi  of  this  kind  cannot  be  broken  down.  That  is  an 
erroneous  idea ;  and  although  it  is  a  difficult  task,  in 
the  majority  of  cases,  it  can  be  accomplished.  A  false 
alibi  may  be  described  in  this  way:  A  has  committed 
a  burglary,  say  between  the  hours  of  eleven  and  twelve 


138  AMERICAN     ADVOCACY. 

on  a  particular  night,  B,  C  and  D  are  resolved  to  se- 
cure his  acquittal,  and  undertake  to  prove  that,  at  the 
time  mentioned,  the  prisoner  was  in  their  company  ten 
miles  away  from  the  scene  of  the  crime.  If  this  be 
proved,  and  the  witnesses  withstand  the  cross-exami- 
nation, they  will  succeed.  They  know  that  they  will 
be  cross-examined  apart  as  to  the  main  events  of  their 
meeting  as  well  as  the  minor  circumstances — the  time 
they  started,  the  road  they  took,  where  they  stopped, 
what  refreshments  they  had,  how  they  were  employed, 
and  even  the  relative  position  each  individual  occu- 
pied with  regard  to  his  companions.  If  the  meeting 
were  altogether  imaginary,  nothing  would  be  more 
easy  than  to  demolish  the  whole  story.  But  if  A,  B, 
C  and  D  went  on  some  other  day  for  the  purpose  of 
subsequently  describing  their  proceedings,  each  would 
be  able  to  stand  against  the  most  subtle  cross-exami- 
nation that  could  be  administered,  as  to  the  circum- 
stances of  their  meeting.  All  would  be  true,  and  the 
more  they  were  cross-examined  the  more  clearly  the 
truth  would  appear.  The  only  thing  they  would  have 
to  make  up  their  minds  upon  and  remember  would  be 
that  it  occurred  upon  the  night  of  the  burglary.  This 
was  doubtless  an  ingenious  device,  and  must  have  suc- 
ceeded for  a  considerable  time.  It  must  have  been  ex- 
posed, however,  on  the  first  occasion,  when  it  was  dis- 
covered that  the  events  were  all  true,  and  yet  the  pris- 
oner was  guilty.  It  could  be  capable  of  one  explana- 
tion only.  Now  comes  the  question :  l '  How  is  such  an 
alibi  to  be  broken  down?"  The  time-worn  questions, 
such  as:  "Where  were  you  the  day  before?  The  day 
after?"  and  so  on,  are  obviously  too  weak  as  well  as 
too  clumsy  to  succeed.  It  cannot  be  doubted  that 
there  must  be  a  way  to  break  down  such  an  alibi,  but 


CONDUCT  OF  A  CRIMINAL  PROSECUTION.  139 

up  to  the  present  time  no  one  seems  to  have  formed 
any  scientific  mode  of  proceeding. 

In  the  first  place,  it  must  be  ascertained  whether  the 
alibi  be  true  or  false  (a  very  different  thing  from 
proving  it  to  be  one  or  the  other),  and  this  will  be  eas- 
ily accomplished  by  a  skillful  advocate  in  three  or  four 
questions;  for,  as  spurious  metal  answers  to  the  test, 
so  a  fictitious  story  will  discover  its  nature  to  a  good 
cross-examiner.  Having  satisfied  himself  on  this 
point,  the  next  question  and  the  only  one  will  be  how 
to  break  down  the  witness  as  to  date.  As  all  the  inci- 
dents deposed  to  actually  occurred,  cross-examination 
as  to  them  will  be  not  only  a  waste  of  time,  but  will 
tend,  as  before  observed,  to  prove  their  truth.  The 
cross-examiner  must,  consequently,  proceed  to  the  in- 
cidents which  are  outside  the  witness'  story.1 

i  If  we  take  an  absolutely  obvious  example  by  way  of  illustration, 
it  will  probably  be  more  useful  than  any  attempt  to  define  a  theory 
by  reasoning.  Suppose,  then,  a  burglary  to  have  been  committed 
on  the  Thursday  immediately  preceding  Good  Friday,  in  a  country 
village,  and  that  the  meeting  for  the  purpose  of  concocting  the  alibi 
took  place  on  Good  Friday.  The  witnesses  will  have  come  prepared 
to  speak  of  the  incidents  of  that  meeting.  They  will  surmise  that, 
in  all  probability,  they  will  be  asked,  because  it  is  a  common  and, 
as  it  seems  to  us,  a  clumsy  question,  "Where  were  you  the  day 
before?"  and,  "When  were  you  with  the  prisoner  before  that?" 
These  questions  and  many  others  of  a  similar  kind  are  as  familiar 
to  the  class  of  persons  now  referred  to  as  they  are  to  the  counsel 
asking  them.  They  are  obvious,  every-day,  stereotyped  questions, 
and  the  witnesses  come  prepared  to  answer  them  accordingly.  But 
suppose  the  cross-examiner  take  the  witness  entirely  out  of  tha 
circumstances,  and  ask  something  which  he  does  not  anticipate.  In 
the  first  place,  he  will  be  afraid  to  answer,  for  fear  a  trap  is  being 
laid,  and  the  more  the  question  is  unconnected  with  the  circum- 
stances of  the  case,  the  greater  will  be  his  alarm.  Follow  that  up 
by  another  and  another  alike  incomprehensible  to  his  baffled,  mind, 
and  then  ask  him  where  he  was  in  the  morning.  That  is  quite  far 
enough  from  the  time  he  has  deposed  to  to  set  him  wondering  what 
it  has  to  do  with  eleven  o'clock  at  night.  As  he  cannot  guess  the 


140  AMERICAN     ADVOCACY. 

§  109.  Closing  Address— Temperate  Reply  versus 
"Earnest  Appeal."— We  should  not  think  it  necessary 
to  say  a  word  as  to  the  reply  in  a  criminal  case,  but 
that  advocates  have  sometimes  been  so  vehement  both 
in  denunciation  and  ''earnest  appeals,"  that  one  al- 
most forgets  that  an  unhappy  wretch  in  custody  was 
the  occasion  of  it.  Calm  and  temperate,  at  all  times, 
should  be  the  voice  that  asks  for  the  condemnation  of 
a  fellow-creature.  Every  allowance  should  be  made 
for  the  common  infirmities  that  beset  us;  every  por- 
tion of  the  case  not  absolutely  covered  by  the  pros- 
advocate's  meaning,  he  will  be  puzzled  what  answer  to  return;  and, 
as  he  will  be  afraid,  on  the  spur  of  the  moment,  to  attempt  to 
invent  a  story,  and  may  not  be  ingenious  enough  to  do  so,  he  will 
probably  tell  the  truth.  Having  got  thus  far,  the  cross-examiner 
starts  with  a  fact.  By  the  same  process  he  may  get  another  and 
another  fact.  The  witness  will  be  drawn  on  to  give  him  facts,  be 
cause  he  does  not  know  what  answers  his  companions  may  give. 
He  will  feel  sure  that  the  cross-examiner  will  put  the  same  ques- 
tions to  them.  Presently,  the  advocate  may  get  from  him,  if  a 
little  caution  and  skill  be  used,  what  people  he  met,  and  where  and 
at  what  time — what  they  did  and  where  they  went.  He  has  not 
come,  by  any  means,  prepared  to  set  up  a  dozen  alibis  at  once — 
some  for  himself  and  some  for  his  friends — so,  he  must  necessarily 
become  confused,  and,  as  he  will  tell  the  truth  and  lie  at  the  same 
time,  the  cross-examiner  will  find  him  pretty  much  at  his  mercy. 
It  may  be  that  he  saw  several  people  on  that  morning,  and  he  may 
place  so  many  of  them  together,  by  a  little  gentle  humoring,  that 
the  cross-examiner  may,  at  least,  safely  put  the  question,  "Were  not 
the  people  coming  out  of  church?"  Outwitted,  the  rogue  will  smile 
and  say,  "No,  it  was  Thursday!''  but  the  effect  of  this,  if  done  with 
tact,  will  utterly  destroy  the  whole  story.  The  jury  will  readily 
accept  the  suggestion — which,  indeed,  the  advocate  may  be  able  to 
prove  by  independent  testimony — that  the  day  he  is  speaking  of 
must,  from  the  incidents  drawn  from  the  witness,  have  been  Good 
Friday,  and  not  the  preceding  Thursday. 

But  the  cross-examiner  will  not  rest  there:  at  present  he  has  only 
gone  a  little  portion  of  the  way.  The  next  witness  will  fall  into  th- 
same  blunder,  and  may  add  another  minute  fact  to  the  particles  of 
evidence.  Suppose  Thursday  was  a  fine,  and  Friday  a  wet  day. 


CONDUCT  OF  A  CRIMINAL  PROSECUTION. 

ecution  should  be  left  unmolested  if,  haply,  his  trem- 
bling foot  may  find  a  resting-place  thereon ;  and  noth- 
ing should  be  asked  of  the  jury  except  the  exercise  of 
impartial  judgment  upon  the  facts  before  them. 

Here  is  a  field  for  the  exercise  of  ingenuity  which  counsel  should 
hail  with  delight;  and  he  ought  not  to  sit  down  till  he  has  proved 
from  the  witness  that  the  day  he  and  his  companions  were  together 
was  a  wet  day.  Of  course,  the  advocate  will  not  be  able  to  elicit 
this  by  direct  questions  or  in  so  many  words;  but  answers  do  not 
always  consist  in  words,  they  are  frequently  conveyed  unwillingly 
by  manner* and  demeanor:  are  given  when  there  is  no  intention  to 
give  them,  and  when  the  witness  is  utterly  ignorant  of  their  effect. 
And  the  effect  will  be  the  same,  if  the  advocate's  examination  be 
skillful,  as  though  the  witness  answered  him  in  actual  words. 
The  advocate  would  not  be  weak  enough  to  let  him  suspect  that 
he  was  cross-examining  for  a  rainy  day,  otherwise  he  would  fail: 
it  is  only  by  keeping  the  witness  in  the  dark  that  he  can  succeed. 
The  witness'  mind  will  be  working  Intensely  the  whole  time  he  Is 
being  cross-questioned,  and,  as  his  great  object  will  be  to  find  out 
what  the  cross-questioner  is  aiming  at,  the  latert's  purpose  must  be 
to  conceal  it. 

If  the  advocate  succeed  In  getting  from  these  two  witnesses  an  in- 
cident, however  small,  that  eren  tends  to  show  that  the  meeting  took 
place  on  Friday,  he  will  have  almost  demolished  the  alibi.  But  C 
comes  into  the  box  and  may,  by  a  stretch  of  memory,  recollect  for 
whom  he  worked  at  the  time  and  what  particular  work  he  was  en- 
gaged upon;  and  it  might  possibly  have  happened  that  some  part  of 
the  machinery  broke  on  that  particular  morning.  Nothing  outsido 
the  case  is  too  trivial  if  it  throw  but  the  faintest  gleam  upon  it.  If 
he  answers  flippantly  he  will  be  caught  in  two  or  three  questions 
without  much  difficulty.  If  he  answers  overcautiously  he  will  be- 
tray himself  by  his  demeanor,  and  the  advocate  may  follow  him  up 
and  give  him  line  like  a  pike  that  has  taken  the  bait.  But  if  no 
work  was  done  and  no  machinery  broken,  the  advocate  will  still  be 
able  to  find  out  his  habits,  his  mode  of  living  and  his  surroundings; 
and  it  will  be  strange  if,  from  all  these,  the  cross-examiner  do  not 
iay  hold  of  some  event  which  will  be  shown  by  its  connection  with 
some  other  event  to  have  happened  on  the  latter  and  not  the  former 
of  the  days  in  question.  The  smallest  incident  may  be  linked  to  a 
greater,  which  may  be  either  patent  of  itself  or  notorious  as  to  the 
day  of  the  week  on  which  it  took  place  Other  witnesses  may  be 
dealt  with  in  like  manner,  none  of  them  being  cross-examined  at  to 
the  same  facts  unless  for  the  purpose  of  contradiction,  but  all  of 
them  questioned  as  to  incidents  which,  small  though  they  be,  will, 
In  their  united  strength,  destroy  the  alibi  altogether. 


CHAPTER  XI. 

CONDUCT  OF  A  DEFENSE  IN  A  CRIMINAL  TRIAL. 


^110.  The  Young  Lawyer  Before 
the  Police  Magistrate. 

111.  How   Far   Defense   Should 

Show   Its   Hand    Before 
Committing    Magistrate. 

112.  How   to  Deal   With   a   De- 

fective Indictment. 

113.  What  and  How  Many  De- 

fenses to  Make 

114.  Opening       Statement       of 

Counsel  for  Defendant. 

115.  Methods    of    Objection    to 

Evidence. 

116.  Emphasizing    Mistakes    of 

Inaccurate  Witnesses. 

117.  Cross-Examination    by    the 

Defense — General  Rules. 

118.  Cross-Examination   by    the 

Defense— "Drawing  Out" 
an  Opposing  Witness. 

119.  Cross-Examination    by   the 

Defense — How  to  Handle 
Hostile  Witnesses. 


§120.  Whether  or  Not  Witness 
Should  be  Called  or  Case 
Submitted  on  State's  Ev- 
idence. 

121.  Closing    Address    for    the 

Defense — Calling  Atten- 
tion to  Absence  of  Mo 
tive  on  Part  of  Accused. 

122.  Closing    Address     for    the 

Defense — Calling  Atten- 
tion to  Motive  of  Prose- 
cuting Witness. 

123.  Closing   Address     for     the 

Defense  —  Explaining 
Away  Difficult  and  Awk- 
ward Points  in  the  Evi- 
dence. 

124.  Closing     Address    for    the 

Defense  —  Emphasizing 
Good  Character  of  Ac- 
cused. 

125.  Closing  Address  for  the 
Defense — General  Con- 
siderations. 


§  110.  The  Young  Lawyer  Before  the  Police  Magis- 
trate.—As  inexperienced  advocates  are  frequently  be- 
fore the  magistrates  in  their  professional  capacity,  it 
may  not  be  without  advantage  to  make  a  few  observa- 
tions on  the  conduct  of  a  case  in  those  courts.  The 
mode  in  which  persons  charged  with  crime  are  defend- 


CONDUCT  OF  A  DEFENSE  IN  A  CRIMINAL  TRIAL.   143 

ed  at  the  police  court  has  often  appeared  to  many  peo- 
ple as  a  kind  of  preliminary  retribution  to  that  which 
is  to  come.  A  young  advocate,  who  has  had  nothing 
of  a  more  serious  nature  to  defend  than  a  charge  of 
drunkenness  or  assault,  is  suddenly  called  upon  to 
pose  before  the  public,  in  a  case  of  willful  murder  or 
some  other  offense,  where  a  committal  is  absolutely 
certain.  How  is  he  to  do  justice  to  his  client?  There 
is  only  one  way,  and  that  is  to  hold  his  tongue.  One 
would  think  advocacy  the  easiest  thing  in  the  world, 
requiring  neither  training,  knowledge,  nor  experience, 
to  see  how  perfectly  ready  the  young  advocate  is  to 
step  into  the  arena  and  do  battle  in  the  interests  of 
the  accused;  as  if  an  advocate  were  made  by  being 
called  to  the  bar  or  admitted  on  the  roll  of  attorneys. 
One  might  just  as  well  expect  the  indentures  of  an 
apprentice  to  impart  a  knowledge  of  his  handicraft. 

When  a  young  lawyer  has  been  instructed  to  de- 
fend a  case  of  murder  or  other  serious  offense  before 
a  committing  magistrate  the  best  thing  he  can  do  is 
to  preserve  an  unbroken  silence.  Otherwise  he  is  al- 
most sure  to  do  mischief;  and  the  worst  mischief  is 
that  he  will  most  likely  tie  up  the  hands  of  the  coun- 
sel engaged  to  defend  before  the  ultimate  tribunal. 
It  may  be  desirable  to  have  a  fact  or  two  upon  the  de- 
positions, but  if  so,  it  will  require  an  advocate  of  some 
experience  to  ascertain  what  those  facts  shall  be.  The 
greatest  discretion  should  be  used  as  to  whether  a 
question  should  be  asked  or  not.  With  a  very  few  ex- 
ceptions,, no  cross-examination  should  be  administered 
when  the  case  is  to  go  for  trial.  Instead  of  this  course 
being  pursued,  a  long  cross-examination  is  often  in- 
dulged in,  or  the  young  gentleman  who  thinks  he  is 
defending  puts  as  many  questions  as  he  can,  under 


144  AMERICAN     ADVOCACY. 

the  impression  that  questioning  is  cross-examination, 
and  then  answers  are  elicited  detrimental  if  not  de- 
structive to  every  chance  of  acquittal.  For  the  pur- 
pose of  convicting  unfortunate  wretches  who  are 
charged  with  offenses,  the  state  need  not  establish 
public  prosecutors  while  young  advocates  defend,  for 
these  gentlemen  can  administer  questions  which  the 
law  forbids  the  prosecuting  counsel  to  ask;  and  what 
is  more,  they  can  privately  question  the  prisoner,  and 
then  by  giving  the  information  so  obtained  in  the 
shape  of  questions  to  the  witnesses  may  display  a 
knowledge  of  circumstances  only  consistent  with  the 
prisoner's  guilt,  as  by  showing  that  he  was  present 
at  the  scene  of  the  crime,  when  probably  the  defense 
is  to  be  an  alibi! 

§  111.  How  far  Defense  Should  Show  Its  Hand  Be- 
fore Committing  Magistrate.— There  may,  neverthe- 
less, be  cases  where  it  is  possible  to  avoid  a  commit- 
tal by  bringing  all  the  facts  before  the  magistrate. 
And  this  may  be  done  sometimes  even  in  the  most 
serious  charges.  But  no  inexperienced  advocate  should 
be  intrusted  to  defend  under  such  circumstances.1 

i  This  was  successfully  done  some  time  since  in  a  case  in  England 
which  attracted  considerable  attention  from  its  remarkable  peculiari- 
ties. A  woman  had  been  murdered  in  a  very  shocking  manner  in  a 
house  of  ill-fame  near  Oxford  street,  London.  The  police,  as  is  cus- 
tomary, obtained  the  all-important  clew,  and  it  was  therefore  neces- 
sary to  obtain  a  prisoner.  They  followed  it  up  with  that  remarka- 
ble intelligence  which  always  characterizes  the  "Force"  in  heavy 
cases;  and  losing  the  clew  for  a  moment  on  board  a  vessel  which 
was  outward  bound,  found  it  again  almost  immediately  in  the  very 
spot  where  they  had  missed  it.  Instead,  however,  of  arresting  the 
man  they  were  after,  "from  information  received,"  they  pounced 
upon  an  inoffensive  and  mild-looking  clergyman  and  charged  him 
with  willful  murder.  Witnesses  were  soon  obtained  (the  supply  in 
London  always  being  equal  to  the  demand,  whatever  may  be  the 
commodity  you  require),  who  saw  the  reverend  gentleman  leave 


CONDUCT  OF  A  DEFENSE  IN  A  CRIMINAL  TRIAL.  145 

Many  cases  there  are  where  a  judicious  examina- 
tion  in  the  first  instance  before  the  magistrate  would 
insure  the  discharge  of  the  accused,  but  in  all  these 
cases  an  advocate  of  some  experience  should  be  re- 
tained. It  may  be  taken  as  a  good  rule  that  where  a 
case  is  going  for  trial  no  defense  should  be  raised.  It 
should  be  carefully  watched,  and  a  question  here  and 
there  judiciously  interposed  where  something  is  cer- 
tain to  be  obtained  favorable  to  the  accused.  Where 
the  answer  is  doubtful  it  should  never  be  risked.  Se- 
vere cross-examinations  and  magnificent  police-court 
speeches  can  only  be  useful  to  the  prosecution. 

If,  however,  the  case  of  the  accused  rests  upon  his 
calling  witnesses,  this  will  necessitate  their  being  be- 
fore the  magistrate,  otherwise  it  will  operate  to  the 
prejudice  of  the  defense  at  the  trial.  The  prisoner, 
moreover,  if  they  are  "bound  over,"  will  have  the  ad- 
vantage of  their  expenses  being  provided  for  if  the 
judge  considers  their  evidence  material  and  trustwor- 
thy. But  if  called  it  is  only  necessary  to  give  the  oat- 
line  of  their  evidence,  a  full  outline  it  may  be,  but  the 
details  should  be  judiciously  reserved.  It  is  a  good 
plan  sometimes  to  have  witnesses  before  the  magis- 
trate and  not  call  them  if  you  can  avoid  it.  It  takes 

the  brothel  where  the  deceased  woman  was  found  immediately  after. 
The  singular  part  of  the  story  was,  that  he  so  exactly  corresponded 
with  the  man  whom  they  did  not  see  leave  the  house  and  whom 
the  police  were  in  quest  of  when  they  boarded  the  vessel.  Of  course 
it  was  of  the  utmost  importance  that  this  gentleman  should  not  he 
committed  for  trial,  although  a  conviction  would  have  been  utterly 
impossible.  It  was  consequently  necessary  to  cross-examine  the  wit- 
nesses and  to  call  evidence.  This  was  accordingly  done,  and  it  was 
clearly  established  that  the  reverend  prisoner  was  perfectly  inno- 
cent of  the  charge;  that  he  was  elsewhere  at  the  time  he  was  said 
to  have  been  in  the  street;  and  that  no  single  circumstance  in  re- 
gard to  his  conduct  required  explanation. 
10 


146  AMERICAN     ADVOCACY. 

the  sting  from  the  question,  ''Were  you  before  the 
magistrate?"  or  "When  were  you  asked  to  give  evi- 
dence?" This  is  very  often,  as  Brougham  would  say, 
"expedient." 

§  112.  How  to  Deal  with  a  Defective  Indictment.— 
Let  it  now  be  assumed  that  the  prisoner  has  been  duly 
committed  for  trial,  and  that  a  "True  Bill"  has  been 
found  by  the  grand  jury.  It  is  the  first  business  of 
the  counsel  instructed  to  defend  to  see  what  charges 
the  indictment  contains.  This  duty  is  more  often  than 
not  neglected  by  junior  barristers,  and  the  consequence 
sometimes  is  that  a  prisoner  is  convicted  on  a  bad  in- 
dictment. It  contains,  perhaps,  no  offense  known  to 
the  law,  or- it  contains  too  many  offenses;  something  is 
not  set  out  which  should  be,  or  there  may  be  a  great 
deal  too  much  set  out.  There  may  in  short  be  some 
"flaw"  which,  if  taken  advantage  of  in  a  proper  man- 
ner, would  insure  the  acquittal  of  the  accused.  This 
is  by  no  means  of  such  rare  occurrence,  notwithstand- 
ing the  powers  of  amendment  and  the  improved  meth- 
ods of  pleading,  as  to  make  it  a  matter  of  little  moment 
to  examine  minutely  the  indictment. 

Referring  now  to  advocates  who  are  good  lawyers, 
when  they  have  carefully  and  critically  perused  the 
indictment,  they  probably  know  exactly  what  it  con- 
tains, and  will  therefore  not  move  without  strong 
necessity  to  have  it  quashed— as  this  is  by  no  means 
a  safe  proceeding.  Indeed,  the  advocate  should  under 
such  circumstances  give  no  opportunity  of  amending, 
where  by  taking  objection  at  the  proper  time,  he  will 
compel  his  opponent  to  "elect"  as  to  which  of  the 
counts  he  will  proceed  upon;  and  that  he  shouH  not 
prematurely  take  an  objection  where  he  should  reserve 


CONDUCT  OF  A  DEFENSE   IX  A  CRIMINAL  TRIAL.     147 

his  attack  for  the  forlorn  hope  of  a  motion  in  arrest 
of  judgment. 

§  113.  What  and  How  Many  Defenses  to  Make.— 
These  points  having  been  carefully  considered,  and 
the  advocate  having  thoroughly  made  up  his  mind  as 
to  ichat  the  defense  is  to  be,  remembering  always  that 
one  good  defense  is  better  than  two,  he  must  now 
watch  carefully  the  opening  of  the  case  for  the  pros- 
ecution. If  his  adversary  open  too  much  it  will  be  a 
point  in  his  favor.  "A  guilty  man,"  says  Whately, 
"may  often  escape  by  having  too  much  laid  to  his 
charge;  so  he  may  by  having  too  much  evidence  against 
him,  i.  e.,  some  that  is  not  itself  satisfactory;  thus  a 
prisoner  may  sometimes  obtain  an  acquittal  by  show- 
ing that  one  of  the  witnesses  against  him  is  an  infa- 
mous informer  and  spy,  though  perhaps  if  that  part 
of  the  evidence  had  been  omitted  the  rest  would  have 
been  sufficient  for  conviction."1 

§  114.  Opening  Statement  of  Counsel  for  Defendant. 
-The  opening  statement  of  counsel  for  defense  may 
be  made  immediately  after  that  for  the  prosecution, 
or,  in  the  discretion  of  the  court,  after  the  close  of  the 
evidence  for  the  prosecution.  It  is  conceded  that  in 
the  great  majority  of  cases  the  opening  statement  of 
the  defense  comes  with  greater  effect  after  the  state 
has  closed  its  case  than  before,  for  the  reason  that  the 
facts  then  stated,  as  intended  to  be  proved,  offer  an 
explanation  of  the  facts  already  proven,  and  thus,  in 
a  measure,  change  the  view-point  of  the  jury  to  one 
more  favorable  to  defendant. 

The  opening  address  of  counsel  for  defendant,  es- 
pecially if  made  after  the  close  of  the  case  for  the 

i  Whately's  Elements  of  Logic,  B.  Ill,  Sec.  18. 


148  AMERICAN     ADVOCACY. 

prosecution,  should  be,  above  all  things,  conciliatory. 
The  time  for  vociferation  and  bold  argument,  if  at  all, 
is  in  the  closing  speech.  The  object  of  the  opening 
statement  should  be  merely  to  draw  the  minds  of  the 
jury  into  a  favorable  attitude  toward  the  defendant 
and  the  introduction  of  his  evidence  in  his  favor;  to 
arouse  their  sympathy  and  to  gain  their  confidence. 

In  harmony  with  the  general  tendency  of  our  laws 
to  favor  the  defendant,  few  restrictions  are  placed  up- 
on counsel  for  the  defendant  in  his  opening  statement. 
The  trial  court,  however,  always  properly  restricts 
him  from  stating  matters  which  would  be  inadmissi- 
ble in  evidence.1 

§  115.  Methods  of  Objection  to  Evidence.— Again, 
if  the  prosecution  inadvertently  open  a  case  differing 
materially  from  the  evidence  of  witnesses,  or  any  of 
them,  it  will  be  a  matter  of  observation  which  will  not 
be  without  its  effect.  It  is  not  the  business  of  the  de- 
fendant's counsel  to  object;  he  does  not  know  what  the 
prosecution  can  prove,  and  if  the  latter 's  proof  fall 
short,  so  much  the  better  for  his  client.  But  he  must 
narrowly  watch  and  object  if  counsel  for  the  prosecu- 
tion propose  to  read  any  letter  or  document,  or  state 
any  conversation  which,  when  the  proper  time  comes, 


i  Meyer  v.  State  (Tex.  Cr.  App.),  41  S.  W.  Rep.  632.  In  this  case, 
which  was  a  trial  of  a  defendant  for  assault  upon  his  wife,  defend 
ant's  counsel  was  permitted  in  his  opening  statement  to  comment  on 
his  wife's  appearance  on  the  witness  stand,  and  her  manner  of  testi- 
fying, so  far  as  the  same  might  tend  to  affect  her  credibility.  But 
it  was  held  that  it  was  not  error  to  refuse  to  permit  him  to  also 
state  to  the  jury  that  it  was  shown  by  her  appearance,  disposition, 
"the  looks  of  her  eyes,  her  conduct,  her  demeanor,  and  manner  of 
testifying,  that  she  is  not  a  woman  of  private  or  domestic  habits, 
but  a  woman  of  worldly  experience,  of  heartless  feelings,  devoid  of 
modesty,  and  of  reckless  and  adventurous  character." 


CONDUCT  OF  A  DEFENSE  IN  A  CRIMINAL  TRIAL.  149 

may  not  be  admissible.  It  is  useless  after  the  mischief 
has  been  done  and  the  impression  made  on  the  minds 
of  the  jury,  for  the  judge  to  say,  ' '  I  shall  tell  the  jury 
that  that  document  or  that  conversation  is  not  evi- 
dence, and  they  are  to  dismiss  it  from  their  minds." 
They  cannot  dismiss  it  from  their  minds,  and  it  is 
evidence,  no  matter  whether  called  so  or  not,  when 
once  before  them,  and  will  in  all  human  probability 
have  an  influence  on  their  judgment.  It  is  like  the 
village  lawyer  telling  the  man  that  they  could  not 
put  him  in  the  stocks;  the  irrefutable  answer,  "But  I 
am  here."  The  defendant's  lawyer  must  further  take 
care  that  if  he  succeed  in  shutting  out  a  document  he 
exclude  also  all  observations  upon  it,  for  nothing  is 
more  unfair  than  to  allude  to  matter  which  is  not  in 
evidence;  although  it  is  often  inadvertently  done. 

While  the  advocate  exercises  the  utmost  vigilance 
to  prevent  the  admission  of  matter  which  is  not  evi- 
dence, care  should  be  taken  not  to  object  to  every  ques- 
tion on  that  account,  or  because  it  may  be  put  in  a 
leading  form  or  in  a  form  that  may  be  otherwise  ob- 
jectionable. Too  many  objections  have  the  bad  effect 
of  wasting  time  and  of  raising  an  unjust  suspicion  in 
the  mind  of  the  jury. 

That  the  defendant's  attorney  should  preserve  the 
most  even  and  calm  demeanor  in  conducting  a  crim- 
inal defense  it  is  hardly  necessary  to  observe.  It  is, 
indeed,  a  part,  and  no  unimportant  part,  of  his  case. 
Irritation  and  querulousness  are  bad  accompaniments 
of  the  best  defense ;  and  if  he  win,  it  will  be  in  spite 
of  them,  and  not  by  their  assistance.  Let  the  worst 
be  stated  against  him,  but,  if  possible,  he  should  not 
let  the  worst  be  proved.  This  must  be  his  object  in 
following  closely  the  witnesses  for  the  prosecution. 


150  AMERICAN     ADVOCACY. 

§  116.  Emphasizing  Mistakes  of  Inaccurate  Wit- 
nesses.—The  defendant's  attorney  must  be  careful  to 
note  the  points  of  difference  between  the  witnesses  as 
well  as  the  points  of  agreement.  For  observe:  They 
may  agree  on  some  point  in  his  favor  and  disagree  as 
to  something  which  is  against  him,  and  indeed,  any 
disagreement  may  be  turned  to  advantage.  With  a  lit- 
tle experience  and  a  good  deal  of  observation  he  will 
be  able  to  distinguish  between  those  matters  of  detail 
which  sometimes  betray  perjured  testimony,  and  de- 
tails which  are  of  no  importance  whatever ;  as  also  to 
distinguish  between  mere  inaccuracies  in  the  evidence, 
arising  from  a  slovenly  habit  of  thought,  and  inaccu- 
racies which  are  artfully  contrived  to  deceive.  Inac- 
curate witnesses,  when  properly  cross-examined,  will 
often  destroy  the  effect  of  the  most  accurate,  as  they 
will  raise  a  doubt  where  none  would  otherwise  exist. 
Inaccuracies,  therefore,  as  to  date,  time,  place,  posi- 
tion of  the  parties,  what  was  said,  by  whom,  and  other 
matters  of  a  like  kind,  ought  not  to  be  overlooked,  due 
regard  being  had  to  what  was  before  observed  as  to 
mere  discrepancies. 

§  117.  Cross-Examination  by  the  Defense— General 
Rules.— In  cross-examination  the  utmost  care  should 
be  exercised  otherwise  the  facts,  instead  of  being  toned 
down,  will  stand  out  the  more  clearly.  The  danger  is 
so  great  to  the  unfortunate  object  whose  fate  may  be 
determined  by  an  injudicious  question,  that  the  advo- 
cate had  better  not  cross-examine  at  all  if  he  has  not 
perfect  confidence  in  the  line  he  is  taking,  and  that  the 
answ.ers  will  not  endanger  his  liberty  of  life.  If  the 
advocate  don't  know  what  to  ask,  ask  nothing.1 

1  "I  do  not  think,"  says  Mr.  Harris,  "that  any  advocate,  however 
clever  he  may  be,  should  take  upon  himself  a  defense  of  any  import- 


CONDUCT    OF   A   DEFENSE   IN   A   CRIMINAL  TRIAL. 

The  best  preparation  a  man  can  have  to  qualify 
himself  to  cross-examine  is  to  study  carefully  the 
mode  in  which  the  best  men  proceed,  and  to  acquire 
a  knowledge  of  character,  of  human  nature,  of  what  is 
called  "the  world."  One  man  may  have  a  greater  apti- 
tude than  another,  but  with  the  most  gifted  it  re- 
quires years  of  training  and  observation  to  arrive  at 
anything  like  perfection.  With  the  ordinary  individu- 
al, therefore,  too  much  study  cannot  be  given  to  ac- 
quiring sound  knowledge  of  the  art.  While  his  cross- 
examination  is  proceeding,  the  counsel  for  the  pros- 
ecution will  watch  for  supplemental  evidence,  or  for 
an  opening  through  which  he  may  drag  some  in.  Fre- 
quently, he  would  have  few  materials  to  ask  a  verdict 
upon  without  this  so-called  examination,  and  that  be- 
ing so,  the  defendant's  attorney  should  ask  as  little  as 
he  possibly  can.  If  he  cannot  serve  his  client  he  should 
avoid  injuring  him.  Of  course,  the  greater  his  ability 
and  the  more  knowledge  he  acquires,  the  more  he  will 
be  able  to  accomplish  with  the  fewest  questions. 

§  118.  Cross-Examination  by  the  Defense— "Draw- 
ing Out"  an  Opposing  Witness.— At  the  commence- 
ment it  is  a  good  plan  to  throw  out  one  or  two  trifling 
and  harmless  questions  in  order  to  ascertain  the  tem- 
per and  feeling  of  the  witness.  It  will  tend  also  to 
put  him  on  good  terms  with  the  advocate,  if  there  be 

ance  till  he  has  had  some  experience.  No  man  without  it  can  cross- 
examine  unless  at  great  risk.  He  may  ask  questions  and  get  an- 
swers, but  he  will  be  a  wonderfully  fortunate  man  if  he  do  not  In- 
flict more  damage  upon  his  client  than  upon  the  witness.  It  has 
often  occurred  that  after  a  spirited  cross-examination  by  a  young 
advocate,  he  has  made  the  observation,  'I  think  I  have  settled  him 
haven't  I?'  In  the  civility  of  my  heart  I  have  answered,  'Yes* 
I  think  you  have.'  At  the  same  time,  I  have  no  doubt  we  were 
speaking  of  two  very  different  persons,  he  referring  to  the  witness 
and  I  to  his  unfortunate  client." 


152  AMERICAN     ADVOCACY. 

a  necessity  for  it.  He  may  have  been  brought  into 
court  against  his  will  and  obliged  to  say  what  he  has 
said;  but  with  mild  encouragement  and  a  little  gentle 
leading  he  will  probably  follow  you  with  the  docility 
of  a  friendly  witness.  He  may  know  a  great  deal  more 
than  he  has  said,  and  what  he  knows  may  throw  much 
light  on  what  has  gone  before.  He  may  be  a  well-dis- 
posed witness,  after  all,  and  inclined  to  give  a  differ- 
ent color  to  the  case.  Everyone  knows  how  much  a 
little  coloring  changes  the  appearance  of  a  bare  wall ; 
so  it  does  the  aspect  of  a  bare  fact.  But  if  the  advocate 
commence  by  treating  the  witness  in  a  hostile  spirit, 
as  though,  being  a  witness  for  the  prosecution,  he  must 
necessarily  be  adverse  in  feeling  to  the  prisoner,  he 
will  lose  the  benefit  of  all  the  kind  things  he  may  be 
able  to  say  in  his  behalf. 

§  119.  Cross-Examination  by  the  Defense— How  to 
Handle 'Hostile  Witnesses.— If,  on  the  other  hand,  the 
advocate  perceive  that  the  witness  has  a  strong  feel- 
ing in  the  matter,  the  less  he  has  to  do  with  him  the 
better.  He  will  drive  every  nail  home  which  the  pros- 
ecution may  not  have  struck  forcibly  enough.  Ask 
him  one  question:  he  will  answer  as  if  he  had  been 
asked  half  a  dozen,  and  every  answer  will  be  unfavor- 
able. The  cross-examiner  might  as  well  butt  the  wit- 
ness-box with  his  head  (and  better,  for  his  client's 
sake)  as  question  a  witness  of  this  kind.  If  he  should 
get  anything  favorable  it  will  be  by  accident,  and  be- 
cause the  witness  does  not  perceive  the  drift  of  the 
question.  Everything  the  advocate  asks  gives  him 
the  opportunity  for  a  speech  against  the  prisoner.  If 
the  advocate  can  slioiv  the  witness'  strong  feeling  by 
a  well-conceived  question  or  two,  it  is  all  he  ought  to 
attempt  with  a  witness  of  this  kind,  unless,  indeed  he 


CONDUCT  OF  A  DEFENSE  IN  A  CRIMINAL  TRIAL.  153 

can  convict  him  of  an  untruth.     These  are  his  only 
chances  with  such  a  witness. 

But  many  hostile  witnesses  may  be  treated  in  a 
different  manner,  according  to  their  degrees  of  hostil- 
ity and  their  temperament.  The  advocate  may  some- 
times destroy  the  effect  of  the  evidence  of  an  adverse 
witness  by  making  him  appear  more  hostile  than  he 
really  is.  He  may  make  him  exaggerate  or  unsay 
something  and  say  it  again.  If  he  cannot  pull  him  off 
his  high-horse  on  one  side  he  may  perhaps  push  him 
over  on  the  other;  and,  so  long  as  he  get  him  off,  it 
does  not  much  matter  on  which  side  he  lands  him.  Per- 
haps the  witness  will  show  himself  spiteful,  and  lose 
his  temper  at  the  same  time ;  if  so,  it  will  be  in  the  ad- 
vocate's  favor,  for  juries  dislike,  above  all  things,  to 
see  spite  in  the  witness-box. 

§  120.  Whether  or  Not  Witnesses  Should  Be  Called 
or  Case  Submitted  on  State's  Evidence.— Having  com- 
pleted his  duty  in  the  above  respect,  the  advocate  will 
not  be  indiscreet  enough  to  "submit  to  the  court  that 
there  is  no  evidence  to  go  to  the  jury,"  if  there  be 
some ;  but  will  consider  whether  he  will  call  witnesses, 
if  he  should  not  have  made  up  his  mind  at  an  earlier 
stage  of  the  case.  If  the  evidence  against  him  be 
weak,  and  his  own  not  strong,  he  ought  not  to  call  any. 
"By  doing  so  he  will  lose  the  last  word,  and,  what  is 
perhaps  of  far  greater  importance,  run  the  risk  of 
strengthening  the  case  against  him  on  the  cross-exam- 
ination loy  the  counsel  for  the  prosecution.  This  has 
often  been  done  to  the  ruin  of  the  accused. 

If  at  length  the  advocate  find  that  he  ought  to  call 
witnesses,  he  should  avoid  calling  too  many;  or  rather 
too  many  to  the  same  subject-matter.  One  good  wit- 
ness is  worth  a  dozen  indifferent  ones,  and  it  is  much 


154  AMERICAN     ADVOCACY. 

easier  to  get  contradictions  from  a  dozen  than  from 
two  or  three.  The  advocate  should  remember,  too,  that 
a  contradiction  in  his  witnesses  will  be  a  much  more 
serious  affair  than  a  contradiction  among  those  of 
the  other  side;  for,  though  the  law  presumes  every 
man  innocent  until  he  be  proved  guilty,  the  jury  pre- 
sumes every  man  on  his  trial  to  be  guilty  until  the  evi- 
dence fails  to  convict  him.  They  will  look  in  most 
cases  with  some  suspicion  upon  the  evidence  for  the 
defense,  and  every  weak  point  in  it  will  be  magnified 
accordingly.  In  most  cases  the  witnesses  for  a  pris- 
oner either  save  or  convict  him.  If  they  are  good  wit- 
nesses and  honest,  they  are  of  inestimable  importance, 
but  if  they  are  shady,  they  will  almost  always  be 
shaky,  and  infinitely  worse  than  none  at  all. 

§  121.  Closing  Address  for  the  Defense— Calling  At- 
tention to  Absence  of  Motive  on  Part  of  Accused.— 

But  whether  the  advocate  call  them  or  not,  he  will  at 
last  come  to  that  very  important  part  of  his  duty, 
namely,  his  speech  on  behalf  of  his  client.  The  advo- 
cate will  now  in  the  pleasantest  manner  but  with  due 
gravity  commence  his  defense,  and  if  the  accused  be 
a  person  of  character,  especially  if  he  occupy  any  po- 
sition in  the  social  scale,  he  will  do  so  by  bringing 
those  facts  prominently  before  the  jury.  Nothing  is 
more  calculated  to  engage  their  attention  and  enlist 
their  sympathies  than  this,  besides  which  the  advo- 
cate excites  as  well  as  gratifies  their  curiosity.  This 
feeling  is  akin  to  surprise,  and  nothing  takes  a  firmer 
hold  of  the  attention.  At  the  same  time  he  will  almost 
have  excited  the  hopes  of  the  jury  on  behalf  of  the 
accused.  The  prosecutor  will  have  passed  from  their 
minds  and  a  new  object  presented  itself,  namely,  that 
of  a  respectable,  well-educated  man  in  the  dock.  Im- 


CONDUCT  OF  A  DEFENSE  IX  A  CRIMINAL  TRIAL.      155 

agination  deepens  the  disgrace  and  awakens  still  ten- 
derer sympathies  on  his  behalf.  They  will  be  sure  to 
think,  without  any  reminder  on  the  advocate's  part, 
of  those  belonging  to  him,  and  of  the  hearts  that  beat 
in  unison  with  his  own.  This  is  a  part  which  should 
not  be  hurried  but  given  time  to  play.  Now  the  advo- 
cate should  bring  forward  the  charge;  if  it  be  one  of 
enormous  guilt,  or  of  a  mean  and  despicable  kind,  or 
one  revolting  to  humanity,  what  a  contrast  is  produc- 
ed between  the  character  and  the  crime!  There  is  an 
inherent  improbability  against  such  a  man  committing 
such  an  offense !  That  is  a  good  contrast  to  start  with. 
And,  here  again,  the  advocate  should  be  careful  not 
to  hurry  the  jury  away  from  so  good  a  situation  in 
the  drama.  If  he  has  performed  this  part  of  his  de- 
fense with  art  and  skill  he  has  already  prepared  the 
mind  for  the  impressions  that  are  to  come.  A  little 
lingering  around  the  scene,  without  too  much  to  say, 
only  to  give  time  before  he  addresses  himself  to  argu- 
ment, will  be  beneficial.  Let  them  just  have  time  to 
contemplate  the  scene  and  take  in  its  misery. 

Connected  with  the  improbabilities  will  be,  possi- 
bly, absence  of  motive.  If  so,  the  subject  comes  in 
naturally  at  this  point.  If  a  motive  has  been  suggest 
ed  it  must  be  grappled  with  and  should  be  as  soon  as 
possible;  if  not,  it  is  a  happy  circumstance  to  be  com- 
mented upon  briefly  but  with  fervor. 

§  122.  Closing  Address  for  the  Defense— Calling  At- 
tention to  Motive  of  Prosecuting  Witness.— Perhaps 
the  advocate  will  discover  some  motive  for  the  pros- 
ecution apart  from  the  divine  " interests  of  justice;" 
if  so,  that  is  a  kind  of  torpedo  which,  when  he  explodes 
it,  will  blow  the  honest  prosecutor  out  of  the  water. 
Having  reached  this  point,  now  will  be  the  time  for  a 


156  AMERICAN     ADVOCACY. 

display  of  his  powers  of  declamation.  So  he  may  pre- 
pare to  use  them  without  delay,  for  he  has  Innocence 
in  the  dock  and  Guilt  in  the  witness-box!  Such,  at 
least,  in  the  eyes  of  the  jury,  is  the  last  situation  in 
the  drama.  And  here  he  may  resume  his  seat  while 
the  curtain  is  dropped.  If  any  one  thinks  this  pic- 
ture exaggerated  or  overdrawn,  the  only  answer  is 
that  it  is  from  life.  Many  an  eloquent  advocate  past 
and  present  has  accomplished  all  that  has  been  said 
by  the  same  or  similar  means.  And  whenever  the  ad- 
vocate reaches  a  point  in  a  defense  where  the  minds  of 
the  jury  are  wavering,  and  where  he  can  honestly  ex- 
cite a  prejudice  against  the  prosecutor  or  his  wit- 
nesses, a  few  heart-warm  sentences  of  well-timed  dec- 
lamation are  all  that  is  necessary  to  demolish  the  case 
for  the  prosecution.  Declamation,  judiciously  em- 
ployed, is  like  cavalry  in  battle,  dashing  in  just  as  the 
enemy  is  on  the  point  of  yielding  and  sweeping  him 
from  the  field.1 

i  William  Howitt,  in  speaking  of  Erskine  as  an  advocate,  says: 
"Lord  Erskine  has  been  pronounced  by  other  distinguished  lawyers 
the  greatest  forensic  orator  that  England  has  ever  produced,  but 
his  fiery  and  electric  eloquence  was  not  more  remarkable  than  the 
warm  and  noble  impulses  of  his  heart.  They  were  his  humanity 
and  patriotism,  his  indignation  against  whatever  was  unjust  and 
oppressive,  which  kindled  and  inspired  his  great  intellect,  and  their 
expression  carried  irresistibly  the  souls  of  his  hearers  along  with 
him.  Under  the  fervid  outgush  of  his  intense  love  of  right,  his  ve- 
hement hatred  of  human  wrong,  the  dullest  hearts  caught  a  new 
life  and  fire,  and  he  drew  verdicts  from  men  who,  without  his  com- 
municated spirit,  would  have  never  dreamed  of  the  sublime  heights 
of  truth  and  justice  to  which  he  carried  them.  The  secret  of  his 
triumphs  was  the  possession  of  a  noble  heart  vivifying  a  quick  and 
instinct-like  intellect.  He  seemed  to  spring  at  once  to  the  truth  of 
the  case  submitted  to  him,  and  he  hurried  his  hearers  with  him 
almost  unconsciously  to  the  same  goal.  It  is  rare  to  see  a  mind  like 
Erskine's  surviving  all  the  cold  cautions  and  technical  sophistries 
of  a  legal  education,  and  seeking  its  triumphs  only  in  the  triumphs 


CONDUCT  OF  A  DEFENSE  IN  A  CRIMINAL  TRIAL.      157 

§  123.  Closing  Address  for  the  Defense— Explaining 
Away  Difficult  and  Awkward  Points  in  the  Evidence. 

—The  jury  will  follow  the  advocate  sentence  by  sen- 
tence and  word  for  word,  and  the  stronger  his  argu- 
ments the  more  intently  they  listen.  If  now  he  can 
point  out  how  they  may  acquit  consistently  with  their 
oaths,  they  will  feel  inclined  to  do  so.  If  he  can  ex- 
plain away  satisfactorily  one  or  two  awkward  points 
in  the  evidence,  the  verdict  will  be  his.  It  has  reduced 
itself  to  this  already.  Without  the  employment  of 
any  clap-trap  he  has  gone  a  long  way  on  the  road.  He 
has  reached  the  feelings  of  the  jury  and  they  w ish  to 
acquit.  Now,  it  is  the  advocate's  duty  to  show  how  it 
can  be  done.  He  should  bring  up  the  evidence  for  the 
prosecution,  not  like  a  tender  delicate  creature,  to  be 
nurtured  as  it  was  by  the  counsel  on  the  other  side, 
but  like  a  hideous  thing  to  be  looked  at  and  put  away 
out  of  sight.  What  is  this  evidence?  Can  he  proceed 
to  show  that  it  is  not  consistent  as  a  truthful  story 
should  be,  but  a  patchwork  performance  of  many 
pieces  and  many  colors,  a  thing  of  no  pattern?  If  so, 
it  begins  to  lose  its  hold  upon  the  jury;  the  improba- 
bilities thicken  and  strengthen;  there  is  increasing 
sympathy  for  the  accused  as  each  juryman  begins  to 
think  he  may  be  the  victim  of  a  terrible  mistake,  or 
worse,  of  a  horrible  conspiracy!  Encourage  that  feel- 
ing, not  by  saying  that  it  is  so,  but  by  leading  their 
minds  to  form  the  conclusion  for  themselves.1 

of  humanity;  a  mind  unseduced  by  royal  favor  or  party,  much  less 
by  selfish  individual  interests;  exulting  in  securing  the  victory  of 
truth,  even  at  the  highest  peril  of  self-sacrifice.  Such  men  may  have 
their  weaknesses,  as  Erskine  had  his,  but  they  have  a  strength  to 
which  no  mere  intellect  or  learning  can  ever  reach.  For  this  reason 
there  is  no  life  of  any  lawyer  which  I  ever  read  with  the  same 
delight  as  I  have  read  that  of  Thomas  Erskine." 

i  Surely  such  a  charge  should,  if  made,  be  supported  by  conclu- 


158  AMERICAN     ADVOCACY. 

§  124.  Closing  Address  for  the  Defense— Emphasiz- 
ing Good  Character  of  Accused.— If  the  advocate  has 
called  witnesses,  of  course  his  obvious  duty  will  be  to 
point  out  the  contrast  between  their  evidence  and  that 
of  the  witnesses  for  the  prosecution,  as  well  as  the 
fact  of  its  being  more  compatible  with  the  character  of 
the  accused.  He  will  perceive  that  character  stands 
prominently  forward  again  and  again  without  any  os- 
tentatious display.  It  should  not  be  used  as  though  in 
so  many  words  he  asked  the  jury  to  acquit  because  the 
prisoner  bore  a  good  character;  it  is  of  great  weight 
where  probabilities  are  balanced  and  circumstances 
are  doubtful — where  they  may  receive  a  construction 
either  favorable  or  unfavorable  to  the  person  charg- 
ed. It  should  play  its  part  like  the  principal  charac- 
ter in  a  drama,  appearing  always  at  the  right  time  and 
in  the  appropriate  scene.  It  is  the  one  thing  that  has 
saved  many  a  rogue  from  his  well-deserved  doom; 
but  it  has  also  saved  many  an  honest  man,  unjustly 
charged,  from  ruin  and  many  a  family  from  misery 
and  degradation.  If  the  advocate  has  this  ally,  the 
enemy  must  be  strong  who  defeats  him.  Of  course, 
there  are  cases  where  character  does  not  and  cannot 


eive  and  unimpeachable  evidence,  not  such  as  Is  open  to  the  obser- 
vations you  are  making;  not  by  evidence  every  part  of  which  seems 
to  be  giving  way  under  examination.  And  can  you  not  point  out 
how  a  man  with  an  estimable  character  should  not  be  destroyed  by 
witnesses  without  any  character  at  all?  If  there  be  one  such  among 
the  witnesses  for  the  prosecution,  it  will  answer  your  purpose.  It 
may  be  the  prosecutor  is  a  rapacious  money-lender  and  the  accused  a 
man  who  borrows.  The  prosecutor  may  be  a  wrecker  of  homes 
and  the  prisoner  a  man  whose  home  is  wrecked,  and  who  is  prose- 
cuted for  obtaining  money  by  some  false  pretense  upon  a  bill  of 
sale.  Accuser  and  accused  may  thus  be  brought  into  contrast  until, 
at  last,  the  one  will  be  looked  upon  with  contempt  and  the  other 
with  compassion. 


CONDUCT  OF  A  DEFENSE  IN  A  CRIMINAL  TRIAL.      159 

avail,  however  excellent  it  may  be;  but,  there  are  so 
many  where  it  is  of  inestimable  importance  that  it  can- 
not be  out  of  place  to  insist  upon  it  as  though  there 
were  hardly  an  exception. 

§  125.  Closing  Address  for  the  Defense— General 
Considerations.— One  of  the  most  seductive  tempta- 
tions to  an  advocate  in  making  the  closing  address  to 
the  jury  for  the  defendant  is  to  wander  from  the  point 
at  issue  and  go  skylarking  into  the  ethereal  realms  of 
glittering  generalities,  charming  the  jury,  and,  inci- 
dentally, the  galleries  by  his  beautiful  word  imagery 
and  his  rhythmic  and  resounding  rhetoric.  The  spell 
created  by  such  eloquence,  if  we  may  be  pardoned  the 
sacrilege  of  using  that  word  in  this  connection,  is  mo- 
mentary; it  is  gone  ere  the  echoes  of  the  speaker's 
voice  have  hushed.  It  matters  not  how  much  of  ora- 
tory and  word  imagery  is  present  if  they  spring  up 
and  flower  naturally  from  the  sound  arguments,  and 
the  deep  earnestness  of  the  speaker;  otherwise  they 
are  as  sounding  brass  and  tinkling  cymbal.1 

In  many  cases  the  advocate  for  the  defense  should 
get  into  the  jury  box  and  become  one  of  the  jury.  That 

x  Dr.  Hall  said:  "If  I  were  upon  trial  for  my  life,  and  my  adro- 
cate  should  amuse  the  jury  with  tropes  and  figures,  burying  his 
argument  beneath  a  profusion  of  tropes  and  figures,  I  would  say  to 
him:  'Tut,  man.  you  care  more  for  your  vanity  than  for  my  hang- 
ing. Put  yourself  in  my  place;  speak  in  view  of  the  gallows  and 
you  will  tell  your  story  plainly  and  earnestly.'  I  have  no  objection 
to  a  lady's  winding  a  sword  with  ribbons  and  studding  it  with  roses 
when  she  presents  it  to  her  lover,  but  in  the  day  of  battle  he  will 
tear  away  the  ornaments  and  present  the  naked  edge  of  the  blade  to 
the  enemy." 

Another  learned  critic  says:  "The  reason  and  judgment  reject  the 
unsubstantial  and  airy  creations  of  an  unfettered  imagination.  They 
demand  that  chaste  thought,  and  not  unadorned  diction,  in  which 
the  cause  itself  may  be  said  to  speak,  and  the  speaker  is  compara- 
tively silent." 


160  AMERICAN     ADVOCACY. 

is  to  say,  he  should  confer  with  them  over  the  case  in 
a  calm,  earnest  manner.  Our  own  opinion  is  that  this 
method  of  speaking  follows  with  more  force  after  a 
stirring  appeal  has  been  made  to  the  emotions  of  the 
jury.  Indeed,  it  is  more  successful  as  a  closing  ap- 
peal than  a  glittering  and  resounding  peroration.1 

i  Of  Lord  Abinger  (Mr.  Scarlett)  it  was  said  that  a  juror,  who  had 
given  him  many  verdicts,  on  being  asked  what  he  thought  of  the 
different  leaders,  said:  "Well,  that  lawyer  Brougham  be  a  wonder- 
ful man;  he  can  talk,  he  can;  but  I  don't  think  nothing  of  Lawyer 
Scarlett."  "Indeed,"  replied  his  interrogator,  "you  surprise  me. 
Why,  you  have  been  giving  him  all  the  verdicts!"  "Oh,  there's  noth- 
ing in  that,"  said  the  juror,  "he  be  so  lucky,  you  see;  he's  always 
on  the  right  side."  David  Paul  Brown  said  of  this  great  advocate: 
"In  addressing  a  jury  he  seemed  rather  to  argue  his  case  with  them 
than  to  them,  and,  in  the  language  of  one  of  his  competitors,  he 
virtually  got  into  the  jury-box  and  took  part,  as  it  were,  in  the  de- 
cision of  his  own  case." 


CHAPTER  XII. 


CLASSES  OF  WITNESSES. 


§126.  The   Lying  Witness. 

127.  The  Flippant  Witness. 

128.  The  Dogged  Witness. 

129.  The  Hesitating  Witness. 

130.  The   Nervous  Witness. 

131.  The  Cunning  Witness. 

132.  The    Witness    Partly    True 

and  Partly  False. 

133.  The    Stupid    Witness. 

134.  The  Semi-Professional  Wit- 

ness. 


§135.  The  Official  Witness. 

136.  The  Policeman    as    a    Wit- 

ness. 

137.  The   Truthful   Witness. 

138.  The  Convict  as  a  Witness. 

139.  The  Private  Detective  as  a 

Witness. 

140.  The    Handwriting    Expert 

as  a  Witness. 

141.  The  Medical  Witness. 

142.  Ihe  Vanity  of  Witnesses. 


§  126.  The  Lying  Witness.— A  witness  whose  evi- 
dence is  untrue  must  lie  with  wonderful  skill  if  he  go 
through  even  his  examination  in  chief  without  betray- 
ing himself.  He  is  the  easiest  of  all  to  dispose  of,  and 
once  discovered  to  the  jury  in  his  true  character,  will 
do  more  harm  to  a  cause  than  half  a  dozen  truthful 
witnesses  will  undo.  In  most  cases,  if  the  cross-exam- 
iner has  had  any  experience,  he  will  he  able  to  refute 
the  statements  of  the  witness  by  his  own  lips. 

The  witness  comes  up  with  a  well-concocted  story, 
and  tells  it  glibly  enough.  Now,  it  is  well  known  that 
events  in  this  world  take  place  in  connection  with  or 
in  relation  to  other  events.  An  isolated  event  is  im- 
possible. The  story  the  witness  tells  is  made  up  of 
facts  which,  if  true,  fit  in  with  a  great  many  other 
11 


162  AMERICAN     ADVOCACY. 

facts,  and  could  not  have  happened  without  causing 
other  facts  or  influencing  them.  If  his  story  be  un- 
true, the  matters  he  speaks  of  will  not  fit  in  with  sur- 
rounding circumstances  in  all  their  details,  however 
skillful  the  arrangement  may  be. 

In  cross-examining  such  a  witness,  or  a  witness  who 
lies,  the  advocate  must  therefore  apply  the  test  of 
surrounding  circumstances,  and  compare  his  testi- 
mony with  that  of  other  witnesses.  The  latter  will  be 
the  severest  and  the  surest  test  if  the  cross-examiner 
apply  it  to  the  smaller  details.  It  need  hardly  be  said 
that,  the  greater  the  number  of  witnesses  to  prove  a 
concocted  story,  the  greater  the  certainty  of  exposure 
by  a  skillful  cross-examiner.  The  main  facts  of  a 
story  may  be  so  contrived  as  to  be  spoken  to  by  all  the 
witnesses;  but  they  cannot  agree  upon  details  which 
never  occurred  to  them,  or  concoct  answers  to  ques- 
tions which  they  have  no  conception  of.  But  even  in 
this  mode  of  cross  examination  the  advocate  must  be 
careful  not  to  obtain  an  apparent  corroboration  where 
he  seeks  contradiction.  The  way  to  avoid  this  is  not 
to  put  the  same  question  upon  some  important  piece 
of  evidence  to  every  ivitness.  If  the  cross-examiner 
has  gotten  the  first  contracted  by  the  second,  he  should 
let  the  matter  rest ;  the  next  witness  may  make  a  guess 
and  corroborate  the  first,  which  will  materially  weak- 
en the  effect  of  the  contradiction.1 

i  It  was  the  great  complaint  of  Brougham,  in  Queen  Caroline's 
trial,  that  the  story  was  so  well  concocted  that  two  witnesses  were 
never  called  upon  one  important  fact.  This,  of  course,  was  contrived 
BO  that  there  should  be  no  possibility  of  contradiction.  It  is  not 
difficult,  if  there  are  several  witnesses  telling  an  untrue  story,  to 
break  them  down  in  cross-examination;  and  one  of  the  best  instances 
Is  that  narrated  in  the  story  of  Susannah  and  the  elders.  This  ex- 
ample of  cross-examination  further  shows  how  necessary  it  is  that 


CLASSES  OF  WITNESSES.  163 

It  is  when  the  cross-examiner  has  to  deal  with  an 
untruthful  witness  who  speaks  only  to  one  set  of  facts, 
and  stands  alone  with  regard  to  that  evidence,  that 
his  skill  is  put  to  the  test.  How  is  he  to  shake  his  tes- 
timony? Assuming  that  character  is  not  altogether 
out  of  the  question,  he  will  first  ascertain  who  he  is, 
and  upon  this  point  he  may  not  be  touched.  If  the 
witness  is  a  man  of  bad  character  (that  he  has  been 
convicted,  say)  the  advocate's  task  will  be  compara- 
tively easy.  He  may  so  unskillfully  put  his  question 
as  to  evoke  sympathy  on  behalf  of  the  witness  instead 
of  contempt;  whereas,  if  his  questions  are  well  asked 
he  may  not  only  show  that  he  is  not  to  be  believed  on 
account  of  his  previous  character,  but  also  on  the 
ground  that  his  mode  of  answering  condemns  him  as 
a  false  witness.  If  the  cross-examiner  shows  at  once 
that  he  knows  all  about  him,  he  will  see  that  it  is  use- 
less to  attempt  to  deceive  him,  and  out  will  come  the 
answer,  probably  in  a  pathetic  tone:  ''Unfortunately 
I  have  been  convicted,  but  what  has  that  to  do  with 
the  case?  Am  I  always  to  be  told  of  it?"  This  will 
enlist  the  sympathy  of  the  jury  at  once.  If,  however, 
from  the  mode  of  putting  the  question,  the  witness 
thinks  the  cross-examiner  has  some  doubt,  he  will  take 
a  different  line,  and  although  the  mode  of  cross-ex- 
amination may  have  led  him  first  into  a  denial  and  then 

the  other  witnesses  should  "be  out  of  court"  while  one  is  under  ex- 
amination. "For  bringing  to  light  the  falsehood  of  a  witness,"  says 
Whately,  "really  believed  to  be  mendacious,  the  more  suitable,  or 
rather  the  only  suitable  course,  is  to  forbear  to  express  the  impres- 
alon  he  has  inspired.  Supposing  his  tale  clear  of  suspicion,  the 
witness  runs  on  his  course  with  fluency  till  he  is  entangled  in  some 
inextricable  contradiction  at  variance  with  other  parts  of  his  own 
story,  or  with  facts  notorious  in  themselves,  or  established  by  proofi 
from  other  sources." 


164  AMERICAN     ADVOCACY. 

driven  him  into  an  admission,  the  fault  will  be  his  and 
not  the  advocate's.  He  should  have  told  the  truth  at 
the  onset.1 

If  the  advocate  know  nothing  as  to  character  he  must 
proceed  to  test  him  by  surrounding  circumstances, 
leading  the  witness  on  and  on,  until,  encouraged  by  his 
apparent  success,  he  will  soon  tell  more  than  he  can 
reconcile,  either  with  fact  or  with  the  imagination  of 
the  jury.2 

A  mile  with  him  will  become  three  if  he  be  led  to 
think  the  object  is  to  make  it  less.  Darkness  will  be- 
come "light  as  day,"  and  the  moon  will  shine  with  the 
utmost  splendor  when,  according  to  the  almanac,  she 
is  nowhere.  It  is  impossible  to  tell  how  far  the  down- 

1  If  an  advocate  ask  such  a  witness  how  many  times  he  has  been 
convicted,  he  will  not  deny  having  been  convicted,  but  will  answer: 
"I  don't  know."  If,  however,  he  asks  him  if  he  has  ever  been  in 
trouble,  he  will  hesitate,  and  say,  "No,"  and  then  "Once,"  thinking 
the  cross-examiner  is  only  acquainted  with  his  last  escapade. 

2  At  a  trial  at  Warwick  some  years  ago  a  remarkably  well-planned 
alibi  was  set  up.    The  charge  against  the  prisoner  was  burglary.  An 
Irish  witness  was  called  for  the  defense,  and  stated  that  at  the  time 
the  burglary  was  committed  the  prisoner  was  with  him  and  four  or 
five  other  persons  some  miles  from  the  scene  of  the  crime.    The  time, 
of  course,  was  a  material  element  in  the  case,  and  the  witness  was 
asked  how  he  fixed  the  exact  time.  He  said  there  was  a  clock  in  the 
room  where  he  and  the  prisoner  were,  and  that  he  looked  at  it  when 
they  went  in  and  when  they  left.    He  was  then  told  to  look  at  the 
clock  in  court  and  say  what  time  it  was.     The  witness  stared  va- 
cantly for  a  considerable  time,  and  then  said  it  was  "such  a  rum 
'un  he  couldn't  tell." 

"Can't  you  tell  a  clock?" 

"Shure,  sor,  I  can't  tell  that  un!" 

"IVhat  was  still  more  strange,  the  same  question  was  put  to  every 
witness,  and  there  was  only  one  out  of  some  six  persons  who  could 
tell  what  o'clock  it  was.  And  yet  they  all  swore  to  the  exact  timo 
deposed  to  by  the  first  witness  and  repeated  the  answer  as  to  how 
they  knew  it.  Of  course  the  alibi  totally  broke  down,  and  the  pris- 
oner was  convicted. 


CLASSES  OF  WITNESSES.  165 

right  liar  will  go  if  only  given  a  little  encouragement. 
Let  him  exaggerate  and  color  to  the  full  extent  of  his 
inclination  or  imagination,  and  when  he  has  complet- 
ed the  picture  every  one  will  see  that  it  is  a  monstros- 
ity ;  in  other  words,  no  one  will  believe  a  word  he  says. 
"A  liar  is  not  to  be  believed  even  when  he  speaks  the 
truth."  It  is  an  old  saying,  but  will  never  be  so  old 
as  to  be  worthless. 

But  the  advocate  may  get  an  actor  in  the  box,  who 
for  a  long  time  will  conceal  his  true  character.  He 
may  be  a  man  who  has  a  spite  against  the  plaintiff,  the 
defendant,  or  the  prisoner,  as  the  case  may  be.  Or, 
if  none  against  the  parties  to  the  action,  he  may  have 
a  very  strong  feeling  against  some  person  interested  in 
the  result  of  the  case.  This  must  be  ascertained.  It 
is  the  very  point  which  he  will  conceal  if  he  can,  but  it 
is  also  the  very  one  that  must  be  found  out  and  expos- 
ed. It  will  probably  be  detected  during  the  examina- 
tion in  chief,  if  the  advocate  be  vigilant ;  if  not,  it  must 
be  ascertained  in  cross-examination.1 

i  The  advocate  must  bear  in  mind,  while  on  this  subject,  that  If 
he  wants  to  read  a  man's  real  character,  he  must  look  at  his  mouth; 
all  the  other  features  may,  to  a  certain  extent,  be  controlled;  but  the 
mouth  never  can  be  sufficiently  to  conceal  the  emotions  from  a  quick 
observer.  All  the  passions  manifest  themselves  upon  and  about  the 
lips;  and  if  the  witness  be  suddenly  and  somewhat  sharply  ques- 
tioned upon  the  subject  that  is  most  strongly  operating  upon  his 
feelings  and  inducing  his  evidence,  an  involuntary  motion  of  the 
mouth  will  be  perceived,  which  will  instantly  betray  him.  A  beard* 
even  cannot  altogether  hide  this  wonderful  index  of  the  mind.  So 
if  a  witness'  attention  is  directed  to  those  facts  in  connection  with 
a  case  which  are  suspected  to  have  strongly  roused  his  feelings 
against  the  plaintiff,  defendant,  or  any  other  person  interested  in  the 
proceedings,  the  advocate  will  gather  from  the  involuntary  expres- 
sion of  his  features  whether  he  is  correct  in  his  surmise;  and  what 
is  of  still  greater  importance,  the  jury  will  perceive  it  as  well,  after 
the  cross-examiner  has  followed  up  his  question  by  another  and  an- 
other, for  ultimately  concealment  will  be  impossible.  This  is  part 


166  AMERICAN     ADVOCACY. 

It  might  be  here  observed,  that  whenever  the  cross- 
examiner  has  once  fairly  caught  his  witness,  he  should 
not  sacrifice  the  advantage  by  exhibiting  him  too  os- 
tentatiously. Having  obtained  the  answer  wanted, 
keep  it,  and  at  once  go  off  upon  another  point ;  other- 
wise, on  repetition,  the  witness  will  qualify  what  he 
has  said,  and  very  likely  unsay  it  altogether  by  some 
lying  explanation.1 

§  127.  The  Flippant  Witness.— When  a  witness 
comes  into  the  box  with  what  is  commonly  called  a 
"knowing"  look,  and  with  a  determined  pose  of  the 
head,  as  though  he  would  say,  "Now,  then,  Mr.  Coun- 
selor, I'm  your  man,  tackle  me,"  the  advocate  may 
be  sure  he  has  a  flippant  and  masterful  being  to  deal 
with.  He  has  come  determined  to  answer  concisely 
and  sharply;  means  to  say  "no"  and  "yes,"  and  no 
more;  always  to  be  accompanied  with  a  lateral  nod,  as 
much  as  to  say,  "Take  that."  But  although  the  mas- 
culine pronoun  has  been  used,  this  witness  is  very  of- 
ten a  female.  She  has  come  to  show  herself  off  before 
her  friends;  she  told  them  last  night  how  she  would  do 
it,  and  feels  quite  equal  to  ' '  any  counselor  as  ever  wore 
a  wig. ' '  I  have  seen  many  a  counsel  put  down  by  such 
a  witness;  a  sharp  answer,  with  a  spice  of  wit  in  it, 
has  turned  the  young  advocate  into  a  blushing  boy 
and  utterly  discomfited  him.  Perhaps  a  laugh  has 

of  what  Is  called  "the  demeanor  of  a  witness,"  so  often  spoken  of 
as  of  such  inestimable  importance  as  one  of  the  test  of  a  witness' 
truth  or  character,  so  highly  appreciated  and  yet  so  little  understood 
in  its  more  subtle  significance. 

i  A  common  liar  of  this  kind,  who  lies  without  art,  is  simply  to  be 
dealt  with  as  the  woodman  splits  up  a  log;  find  a  crack,  be  it  ever  BO 
small,  place  in  the  wedge  and  drive  it  home,  but  never  put  the  wedge 
across  the  grain. 


CLASSES  OF  WITNESSES.  167 

been  caused  by  some  impertinent  observation.  The  best 
advice  under  these  circumstances  is,  first  of  all,  for 
the  advocate  to  make  up  his  mind  not  to  be  put  down. 
He  must  preserve  the  most  placid  and  unruffled  de- 
meanor, and  above  all  things,  never  reply  upon  the 
u'itness.  To  be  led  into  a  retort,  unless  it  were  an 
absolutely  crushing  one,  would  betray  a  weakness  and 
show  that  the  witness  was  making  the  running.  To 
argue  with  a  witness  is  not  only  to  abandon  the  cross- 
examiner's  high  post  of  vantage,  but  to  make  a  bad 
impression  on  the  jury. 

In  dealing  with  this  witness,  an  advocate  should 
carefully  abstain  from  administering  rebukes,  or  at- 
tempting "to  put  the  witness  down."  His  object 
should  be  to  keep  her  up  as  much  as  possible,  to  en- 
courage that* fine  frenzied  exuberance,  which  by  and 
by  will  most  surely  damage  the  case  she  has  come  to 
serve.  A  little  encouragement  would  be  of  more  ser- 
vice than  anything  that  would  tend  to  dampen  the  ar- 
dor of  this  flippant  fury.  Besides,  the  advocate  has 
opportunity  of  animadverting  upon  her  evidence  by 
and  by,  and  is  then  enabled  to  show  by  the  contrast  of 
a  quiet  manner  with  her  blatant  and  irrepressible  de- 
meanor how  utterly  worthless  her  evidence  is.  The 
good  effect  which  any  portion  of  it  may  have  produced 
will  share  the  condign  fate  of  the  remainder.1 


i  An  endeavor  will  be  made  to  point  out  the  mode  of  putting  a 
question  in  such  a  case.  The  cross-examiner  should  always  approach 
the  witness  as  if  she  were  a  wild  animal  ready  to  tear  him  if  she 
should  get  near  enough.  Therefore,  he  must  circumvent.  The  cross- 
examiner  may  be  sure  she  will  never  give  an  answer  that  she  sup- 
poses may  be  favorable.  This  kind  of  witness  has  been  known  to 
become  so  "worked  up,"  tnat  at  last  she  has  refused  to  give  an  an- 
swer that  she  may  tnink  favorable  even  to  her  own  side,  for  fear  it 


168  AMERICAN     ADVOCACY. 

The  advocate  will  have  observed  that  his  opponent 
has  driven  this  splendid  creature  with  a  bearing  rein. 
In  cross-examination  he  should  take  that  off  and  let 
her  "have  her  head."  "Did  I  understand  you  to  tell 
my  learned  friend"  so  and  so?  will  be  quite  sufficient 
to  set  her  at  liberty  if  asked  in  a  tone  that  conveys  the 
cross-examiner's  feeling  on  the  subject.  "I  did  not," 
with  great  emphasis,  will  be  her  last  word.  She  will 
require  some  bridling  in  re-examination  after  that. 

§  128.  The  Dogged  Witness.— The  dogged  witness 
is  the  exact  opposite  of  the  one  we  have  just  been 
dealing  with.  He  will  shake  his  head  rather  than  say 
no.  He  seems  always  to  have  the  fear  of  perjury  be- 
fore his  eyes,  and  to  know  that  if  he  keeps  to  a  nod  or 
a  shake  of  the  head  he  is  safe.  He  is  under  the  im- 
pression that  damage  the  case  he  must,  whatever  he 
eays.  "A  still  tongue  makes  a  wise  head,"  has  al- 
ways been  his  maxim. 

may  be  made  use  of  somehow  by  the  other.  It  is  necessary,  there- 
fore, to  watch  for  a  fitting  opportunity,  and  if  the  advocate  allow 
her  to  make  some  particularly  good  hit  against  him  which  causes  a 
laugh,  she  will  be  in  an  ecstasy  of  triumph  and  at  his  mercy.  At 
the  moment  of  her  triumphant  excitement  will  be  the  time  to  put  the 
question;  but  it  must  not  be  done  as  though  the  cross-examiner 
thought  it  a  matter  of  importance,  but  rather  as  if  he  were  putting 
it  for  the  purpose  of  turning  off  the  laugh  against  him.  While  off 
her  guard,  if  the  question  be  well  worded,  the  answer  will  slide 
from  her  flippant  tongue  before  she  has  had  time  to  consider  its 
probable  effect.  But  having  got  it  the  advocate  passes  away  from  the 
subject  instantly  by  putting  another  question  of  no  importance  or 
relevancy  whatever.  This  is  a  hint  suggested  by  repeated  instances 
In  which  it  was  observed  that  this  mode  was  pursued  by  one  of  the 
greatest  cross-examiners  of  the  present  time.  The  cross-examiner 
will  find  his  advantage  in  the  witness'  triumph.  It  is,  as  some  one 
has  illustrated  it,  "not  unlike  a  fencer  making  an  overreaching 
thrust.  Before  he  can  recover  his  balance  the  adversary  has  deliv- 
ered a  well  dlrected  blow." 


CLASSES  OF  WITNESSES.  169 

How  is  the  cross-examiner  to  deal  with  him?  If 
he  has  said  nothing  against  his  case  he  should,  of 
course,  leave  him  alone — always,  unless  he  desires  to 
draw  something  from  him  in  its  favor.  If  he  cross- 
examine  at  all,  he  must  beware  of  letting  him  think 
that  he  has  any  design  of  ''catching  him."  Insinua- 
tion will  help  the  cross-examiner  with  this  witness. 
But  he  should  carefully  avoid  asking  for  too  much  at 
the  time.  He  should  get  little  answers  to  little  ques- 
tions, and  he  will  then  find  as  a  rule  that  answers  are 
strung  together  like  a  row  of  beads  within  the  man; 
and  if  he  draw  gently,  so  as  not  to  break  the  thread, 
they  will  come  with  the  utmost  ease  and  without  caus- 
ing the  patient  the  slightest  pain.  In  fact,  till  he  hears 
the  advocate  sum  up  his  evidence,  he  will  have  no  idea 
of  what  he  has  been  delivered. 

This  witness,  without  being  untruthful,  is  always 
hostile;  he  looks  on  the  advocate  as  a  dangerous  man, 
a  sort  of  spy.  He  will  become  bolder,  however,  as  he 
proceeds,  especially  if  the  cross-examiner  prove  to 
him  that  he  is  by  no  means  the  terrible  creature  he  at 
first  thought  him.  And  the  best  way  to  foster  this 
idea  is  to  accustom  him  to  answer.  The  advocate 
should  let  him  see  that  his  questions  are  of  the  sim- 
plest possible  kind ;  even  so  simple  and  so  easily  an- 
swered that  it  seems  almost  stupid  to  ask  or  answer 
them.  "Of  course,"  he  says  to  one;  "Certainly,"  to 
another;  "No  doubt  about  that,"  to  a  third,  and  so  on. 
Presently  the  cross-examiner  slips  one  in  that  is  neith- 
er "of  course"  nor  "certainly,"  and  gets  his  answer. 
The  advocate  should  look  upon  this  witness  as  a  lump 
of  human  nature  in  the  witness-box,  out  of  which  he 
may,  by  ingenuity  and  skill,  extract  something  be  it 
ever  so  small,  which  may  serve  his  purpose;  some- 


170  AMERICAN     ADVOCACY. 

thing,  perhaps,  which  he  can  find  nowhere  else  in  all 
the  case.1 

§  129.  The  Hesitating  Witness.— A  hesitating  wit- 
ness may  be  a  very  cautious  and  truthful  witness,  or 
a  very  great  liar.  The  cross-examiner  will  find  this 
out  before  he  begins  to  cross-examine.  In  most  cases 
the  hesitating  man  is  wondering  what  effect  the  an- 
swer will  have  upon  the  case,  and  not  what  the  proper 
answer  is.  By  no  means  hurry  this  individual.  He 
should  be  permitted  to  consider  well  the  weight  of 
his  intended  answer,  and  the  scale  into  which  it  should 
go,  and  in  all  probability  he  will  put  it  into  the  wrong 
one  after  all.  If  he  should,  the  advocate  should  leave 
it  there  by  all  means.  Besides,  giving  him  plenty  of 
time  will  tend  to  confuse  him — as  confused  he  should 
be  if  he  is  not  honest.  He  cannot  go  on  weighing  and 
balancing  answers  without  becoming  bewildered  as  to 
their  probable  results.  At  every  question  he  will  look 

i  This  witness  may  be  an  old  man  (generally  Is),  and  the  subject 
of  inquiry,  a  right  of  way.  He  may  be  the  "oldest  inhabitant." 
What  are  the  moving  springs  of  human  conduct?  Love  of  justice, 
which  he  has  known  from  a  boy  upwards,  and  his  father  before  him, 
as  "right  is  right  and  wrong  is  no  man's  right."  Self-approbation, 
or  vanity,  concentrated  in  him  under  the  form  of  "a  wonderful  mem- 
ory," which  has  been  the  talk  of  the  neighbors  for  years;  the  know- 
ing more  of  by-gone  times  than  any  man  or  woman  in  the  place; 
Selfishness,  called  by  him  his  "uprightedncss  and  downstraighted- 
ness;"  Independence  of  spirit,  "he  cares  for  no  man,  and  always  paid 
one  hundred  cents  on  the  dollar" — these  are  the  vulnerable  points  In 
his  armor;  and  if  the  advocate  cannot  thrust  an  arrow  in  at  any  of 
these  he  had  better  hang  up  his  bow,  for  he  will  never  make  a  good 
archer.  His  witness  will  answer  anything  if  the  cross-examiner  ap- 
peal to  his  memory,  or  if  the  question  put  magnifies  his  independ- 
ence of  spirit,  or  brings  out  in  all  its  dazzling  luster  that  "uprighted 
ness  and  downstraightedness,"  of  which  exalted  virtue  he  believes 
himself  to  have  been  ever  a  most  distinguished  example,  if  not  th& 
actual  discoverer. 


CLASSES  OF  WITNESSES.  171 

up  in  an  oblique  direction ;  his  answer  will  be  in  an 
oblique  direction  too.  Very  often  he  will  repeat  the 
question  to  gain  time.  Sometimes  he  pretends  not  to 
hear,  sometimes  not  to  know;  all  this  time  he  is  ad- 
justing his  weights,  and  in  all  probability  some  of  them 
are  false.  But  the  cross-examination  should  by  no 
means  lag;  a  halting  cross-examination  seldom  goes 
far.  Slow  questions  are  usually  feeble.  With  this 
witness  they  should  be  asked  at  the  ordinary  rate,  or 
if  anything,  perhaps  a  trifle  quicker,  so  that  the  hesi- 
tation may  be  more  apparent  and  the  blundering  more 
complete. 

§  130.  The  Nervous  Witness.— A  nervous  witness 
is  one  of  the  most  difficult  to  deal  with.  The  answers 
either  do  not  come  at  all,  or  they  tumble  out  two  or 
three  at  a  time;  and  then  they  often  come  with  oppo- 
sites  in  close  companionship;  a  "Yes"  and  a  "No" 
together,  while  "I  don't  know"  comes  close  behind. 
"I  believe  so,"  or  "I  don't  think  so,"  is  a  frequent 
answer  with  this  witness.  The  examiner  must  deal 
gently  with  this  curious  specimen  of  human  nature. 
He  is  to  be  encouraged.  It  is  no  use  to  bray  him  in  a 
mortar.  Counsel  often  get  irritable  and  petulant,  and 
ask  such  questions  as:  "Will  you  be  good  enough  to 
explain  to  those  gentlemen  what  you  mean?"  This 
is  bad,  and  "those  gentlemen"  generally  dislike  the 
soft  solder  implied.  Some  counsel  may  not  know  it, 
but  they  injure  their  clients  by  observations  of  this 
kind.  Besides,  the  rebuke  and  the  oblique  flattery  to 
the  jury  do  not  produce  the  effect  of  restoring  the 
witness  to  firmness  or  self-possession.  The  cross- 
examiner  should  deal  as  gently  with  a  weakness  of 
this  kind  as  he  would  with  a  shying  horse.  The  ner- 


172  AMERICAN     ADVOCACY. 

vous  witness,  like  all  others,  is  either  to  be  cross-ex- 
amined or  not;  if  he  be,  the  cross-examiner  must  do 
it  without  driving  him  into  such  a  state  that  his  an- 
swer, however  favorable,  will  have  no  value  in  the 
eyes  of  the  jury;  and  this  will  surely  be  the  effect  of 
agitating  him  by  petulant  impatience. 

§  131.  The  Cunning  Witness.— The  cunning  witness 
must  be  dealt  with  cunningly.  Humor  would  be  mere 
pastime,  and  straightforward  questioning  out  of  char- 
acter with  him.  But  by  way  of  contrast,  and  for  that 
only,  straightforwardness  may  not  be  out  of  place 
with  the  jury.  Whatever  of  honesty,  whether  of  ap- 
pearance, manner,  tone  or  language,  contrasts  with 
the  vulgar,  self-asserting  and  mendacious  acting  of 
this  witness  will  tend  to  destroy  him.  Every  one  can 
see  that  he  tries  to  appear  what  he  is  not,  and  that  he 
pretends  to  know  a  great  deal  more  than  he  does.  This 
is  the  man  to  show  to  the  jury  in  his  real  character, 
and  they  will  enjoy  the  cross-examiner's  good-humor- 
ed exposure  of  the  cheat.  But  it  by  no  means  follows 
even  then  that  they  will  disbelieve  him  altogether. 
They  will  discount  his  evidence  and,  without  some  cor- 
roboration,  attach  little  weight  to  it.  If  contradicted 
by  a  respectable  witness  or  a  fact,  they  will  discredit 
him  altogether.  The  advocate  will  therefore  assist 
him  to  play  his  own  part,  and  to  be  himself;  he  will 
exaggerate  and  color  in  his  own  vulgar  manner,  utter- 
ly unable  to  perceive  that  he  is  producing  a  distorted 
account  which  no  one  will  believe. 

§  132.  The  Witness  Partly  True  and  Partly  False. 
—The  witness  who  is  partly  true  and  partly  false. 
without  hypocrisy,  knowing  that  he  is  giving  color  to 
some  facts,  suppressing  others,  and  adding  little  ones 


CLASSES  OF  WITNESSES.  173 

to  make  good  measure  for  his  party,  is  the  most  diffi- 
cult of  all  to  deal  with.  The  process  of  separating  the 
true  from  the  false  requires  skill  as  well  as  ingenuity 
and  patience.  And  the  cross-examiner  must  bear  in 
mind  that  it  is  not  sufficient  for  him  alone  to  know 
the  nature  and  character  of  the  evidence;  his  task 
will  only  be  half  accomplished  at  this  point.  There 
will  still  remain  the  more  difficult  one  of  exhibiting 
it  to  the  jury  in  the  same  light  and  with  the  same  as- 
pect with  which  it  presents  itself  to  his  own  mind. 
The  jury,  untrained  to  sift  evidence,  will  not  so  read- 
ily detect  imposture  and  deceit  as  he ;  nor  will  they  so 
easily  distinguish  between  what  is  true  and  what  is 
false  when  the  ingredients  are  mixed  up  cunningly  in 
the  evidence  of  an  artful  witness  of  this  description. 
If,  however,  the  advocate  can  lay  hold  of  any  one  part 
and  expose  an  incongruity  or  an  incompatibility,  he 
will  have  accomplished  a  great  deal.  The  cross-ex- 
aminer must  watch  carefully  to  find  out  if  there  be  a 
want  of  assimilation  in  the  parts  of  the  story ;  if  there 
be  a  disagreement  between  some  of  the  false  parts 
and  some  of  the  true,  he  must  ascertain  whether  the 
alleged  facts  can  exist  together  and  in  connection  with 
one  another,  and  must  cross-examine  for  causes  and 
effects;  he  will  then  determine  whether  they  agree 
with  the  facts  stated  by  other  witnesses. 

§  133.  The  Stupid  Witness.— Another  class  of  wit- 
nesses not  infrequently  met  with  in  court  is  the  stupid 
witness.  There  are  many  kinds  of  stupid  witnesses, 
but  the  particular  specimen  to  which  attention  is  call- 
ed is  that  civil  and  agreeable  being  who  agrees  with 
everybody  for  fear  of  disagreeing.  He  belongs  to  no 
exalted  rank  in  society,  and  is  not  assisted  in  his 
worldly  pursuits  with  a  superabundance  of  the  high- 


AMERICAN     ADVOCACY. 

est  intellect.  Now,  if  the  cross-examiner  thinks  he 
has  a  witness  whose  evidence  he  can  mould  to  any 
shape  he  likes,  he  thinks  rightly,  as  he  may  make  a 
piece  of  dough  into  a  boat,  but  the  important  question 
is — win  it  swim?  Will  the  evidence,  manipulated  by 
the  advocate's  utmost  skill,  be  serviceable  to  his  case! 
The  line  to  take  is  not  that  which  leads  this  kind  of 
witness  into  mere  inane  contradictions  of  all  he  has 
said  before.  With  a  sharp  person  this  would  result  in 
the  overthrow  of  the  evidence  altogether.  Not  so, 
however,  with  that  of  the  stupid  witness ;  his  evidence 
is  essentially  weak,  unsupportable  of  its  own  fiber, 
and  if  the  cross-examiner  has  noticed  carefully  he  will 
have  seen  how  tenderly  it  was  drawn  out,  like  the  deli- 
cate haulm  of  the  pea,  and  how  carefully  it  was  prop- 
ped up  with  a  forensic  stick.  What  he  has  to  do  is  to 
take  away  its  artificial  support.  It  need  not  be  rooted 
up.  It  simply  is  not  ivhat  it  seems.  Alter  its  appear- 
ance and  tendency,  and  the  cross-examiner  will  have 
done  enough. 

§  134.  The  Semi-Prof essional  Witness.— Another 
class  of  witnesses  deserving  of  notice  is  that  of  the 
semi-professional.  He  is,  in  fact,  semi-everythmg.  He 
is  half  religious  and  half  libertine ;  half  teetotaler  and 
half  drunkard;  half  veracious  and  half  liar;  his  word 
is  positive  and  his  respectability  comparative.  Imagi- 
nation might  describe  this  witness  as  a  lean  old  man, 
with  a  high,  narrow  forehead  and  a  much  under-hang- 
ing lip,  a  mouth  that  twitches  with  self-importance 
and  an  impatience  of  contradiction.  He  wears  glasses 
that  shut  up,  and  waves  them  with  an  air  of  conse- 
quence when  he  answers  a  question,  putting  them  on 
and  taking  them  off  with  his  hand  in  front  of  his  face 
when  he  wishes  to  evade  a  question.  How  will  the 


CLASSES  OF  WITNESSES.  175 

advocate  cross-examine  a  man  who  has  all  the  good- 
ness of  the  canting  hypocrite  with  all  the  pretensions 
of  the  scientific  witness?  Tenacity  of  opinion  is  his 
weakness.  He  will  sacrifice  truth  itself  rather  than 
give  up  his  opinion.  Let  the  cross-examiner  drive  him 
into  that  net  and  he  has  him  a  safe  captive.  If  he  at- 
tempt to  show  that  his  opinion  is  valueless  because  he 
has  not  been  articled  to  a  surveyor,  or  is  otherwise  not 
a  regular  professional,  the  advocate  will  lamentably 
fail.  The  jury  always  resent  an  attack  upon  a  man 
made  solely  because  his  knowledge  has  not  been  ac- 
quired in  the  orthodox  red-tape  manner.  There  are 
almost  sure  to  be  "self-made"  and  "self-taught"  men 
on  the  jury.  But,  in  whatever  circumstances  this  in- 
dividual may  appear,  if  the  cross-examiner  wishes  to 
attack  his  knowledge,  he  should  cross-examine  about 
facts,  and  he  will  soon  learn  whether  the  witness  knows 
his  business  or  not.  If  the  advocate  himself  know 
nothing  of  what  he  is  cross-examining  to,  the  witness 
will  beat  him  unmercifully  at  every  point;  if  he  do 
know  something,  he  will  plumb  the  depth  of  the  wit- 
ness' scientific  ignorance  very  soon. 

§  135.  The  Official  Witness.— A  witness  by  no  means 
of  rare  occurrence  is  the  official  witness.  He  is  a  man 
of  many  callings  and  varied  appearances,  but  is  of 
one  type,  and  not  even  like  any  other. 

He  may  be  a  subordinate  in  the  civil  service,  or  at- 
tached to  a  military  department,  to  the  naval  reserve, 
or,  as  in  the  present  case,  he  may  be  an  "officer  of  the 
force."  One  "in  authority"  he  must  be,  and  in  the 
service  of  the  state.  No  mere  offspring  of  a  railway 
company  could  possess  the  air  of  self-importance,  com- 
bined with  ignorance,  which  belongs  to  the  "state  of- 
ficial." An  inexperienced  counsel,  must  needs  look 


176  AMERICAN     ADVOCACY. 

small  before  such  a  being  as  this;  and,  whatever  may 
be  his  mode  of  attack,  yonder  human  citadel  has  sur- 
vived similar  assaults  and  is  prepared  to  stand  a  siege 
of  questions  from  the  oldest  veteran  in  the  field.  The 
mode  which  the  official  witness  adopts  to  defeat  the 
cross-examination  of  a  young  advocate  is  to  fall  upon 
him  with  all  the  weight  of  his  official  arrogance. 
Brusque  and  loud  as  the  tone  of  a  drill  sergeant  to  an 
awkward  squad  are  the  answers  he  throws  at  the  in- 
experienced advocate;  and  every  time  this  crushing 
force  has  been  exercised  the  huge  mass  of  authority 
lifts  up  its  head  above  the  official  cravat  and  poses  it- 
self with  a  well-defined  expression  of  "I  am  ready  for 
you  again,  if  you  require  any  more,  sir." 

How  to  cross-examine  this  gentleman  is  the  ques- 
tion. To  which  we  answer:  The  largest  balloon  will 
burst  if  too  much  gas  is  forced  into  it.  Self-inflated 
with  the  responsibilities  of  his  office,  the  advocate  may 
increase  him  more  and  more  until  the  domineering  as- 
cendancy in  the  witness-box  will  be  an  indication  of 
the  domineering  arrogance  he  would  exercise  over  a 
prisoner.  The  cross-examiner  will  make  him  writhe 
by  appearing  to  dispute  his  evidence,  and  will  intoxi- 
cate him  with  his  self-importance  if  he  administers  it 
in  suitable  doses.  When  he  becomes  too  great  for  the 
witness-box  the  jury  will  see  that  he  is  out  of  propor- 
tion, and  when  he  most  protests  by  his  manner  that 
he  ought  to  be  believed  without  question  the  jury  will 
most  distrust  him,  always  supposing  that  he  has  to  re- 
ly upon  the  strength  of  his  own  veracity,  which  is  not 
very  great. 

§  136.  The  Policeman  as  a  Witness.— Every  one 
who  conducts  a  defense  in  a  criminal  trial  has  to  deal 
with  police  testimony,  and  as  a  class  of  evidence  it 


CLASSES  OF  WITNESSES.  177 

figures  more  conspicuously  in  criminal  courts  than 
any  other.  Again,  it  is  to  be  said,  as  far  as  possible 
leave  them  alone.  They  are  dangerous  persons.  They 
are  professional  -witnesses,  and  in  a  sense  that  no  oth- 
er class  of  witnesses  can  be  said  to  be.  Their  answers 
generally  may  be  said  to  be  stereotyped.  All  the  ordi- 
nary questions  have  been  answered  scores  of  times  by 
the  well-disciplined  "active  and  intelligent  officer." 
Without  accusing  him  even  by  implication  of  having 
no  reverence  for  the  sanctity  of  an  oath,  it  must  be 
said  that  if  he  sees  the  drift  of  the  cross-examiner's 
questions,  the  chances  are  against  getting  the  answers 
wanted.  He  thinks  it  is  his  duty  to  baffle  the  prison- 
er's advocate. 

To  be  effective  with  the  policeman  the  cross-exami 
ner's  questions  must  be  rapidly  put.  Although  he 
has  a  trained  mind  for  the  witness-box,  it  is  trained 
in  a  very  narrow  groove;  it  moves  as  he  himself  moves, 
slowly  and  ponderously  along  its  particular  beat;  it 
travels  slowly  because  of  its  discipline,  and  is  by 
no  means  able  to  keep  pace  with  the  advocate's,  or 
ought  not  to  be.  The  latter  should  not  permit  him  to 
trace  the  connection  between  one  question  and  anoth- 
er when  he  desires  that  he  should  not  do  so.  If  the 
cross-examiner  ask  him  whether  it  was  a  very  dark 
night,  and  the  darkness  has  nothing  whatever  to  do 
with  the  issue,  he  will  commence  a  process  of  reason- 
ing (invented  at  Scotland  Yard)  as  to  the  motive  of 
the  question  and  what  might  possibly  be  the  effect  of 
his  answer.  While  this  mental  exertion  is  going  on, 
he  should  be  interrupted  suddenly  with  a  question  the 
advocate  has  good  reason  for  putting,  and  in  all  prob- 
ability he  will  get  something  near  the  answer  he  re- 
quires. 
12 


178  AMERICAN     ADVOCACY. 

Policemen  have  a  great  deal  of  knowledge  about  the 
case  and  a  great  deal  of  belief.  The  former  will  be 
found  bad  enough  to  deal  with,  but  the  cross-examiner 
must  be  careful  not  to  elicit  a  large  quantity  of  the 
latter;  if  he  does,  he  may  rest  assured  it  will  look  so 
like  fact  that  it  will  pass  with  the  jury  as  such.1  Fur- 
thermore, it  is  dangerous  to  put  "fishing"  questions 
to  this  class  of  witness.  The  cross-examiner  is  al- 
most sure  to  catch  the  wrong  answer.  His  safer  course 
will  be  to  cross-examine  for  contradictions  and  im- 
probabilities, not  forgetting  where  necessary  to  give 
the  witness  the  opportunity  of  denying  anything  upon 
which  he  intends  to  contradict  him.  Cross-examine 
for  prejudices,  and  as  to  opportunities  it  should  be  re- 
membered always  that  there  is  often  as  much  in  the 
manner  as  in  the  matter  of  cross-examination,  and 
much  more  at  times  in  silence  than  in  both.  The  po- 
lice constable  is  not  below  human  nature  generally. 
The  parent  of  many  of  his  faults  is  the  fact  that  sub- 
ordinate judges,  as  a  rule,  think  he  must  be  protected 
by  an  implicit  belief  in  his  veracity.  As  a  natural  con- 
sequence he  falls  into  the  error  of  believing  in  his  own 
infallibility. 

§  137.  The  Truthful  Witness.-The  truthful  witness 
has  been  said  to  be  the  most  difficult  of  all  to  cross- 
examine.  On  the  contrary,  however,  he  is  the  easiest 
of  any.  By  the  term  truthful,  it  is  not  intended  to  be 
implied  that  the  evidence  of  the  witness  is  necessarily 

i  "What  did  you  say  when  you  apprehended  the  prisoner?"  asks 
Jones,  eager  for  the  display  of  his  severe  ability  in  cross-examination. 

"Oh!"  says  the  active  and  intelligent,  "I  forgot  that." 

"I  beg  your  pardon.  I  said:  'Now,  Sykes,  when  you  come  out 
from  doin'  the  last  seven  year,  you  told  me  you  meant  to  turn  over 
a  new  leaf,  and  'ere  you  are  again." 

And  there  the  learned  counsel  was  again! 


CLASSES  OF  WITNESSES.  179 

true.  If  it  were  so,  it  would  be  idle  to  cross-examine 
at  all.  By  a  truthful  witness  is  meant  one  who  be- 
lieves and  intends  his  evidence  to  be  true.  He  is  the 
easiest  to  deal  with,  because  he  does  not  equivocate  or 
prevaricate.  He  has  no  secret  meaning,  and  gives  his 
answers  readily  and  without  mental  reserve.  He  de- 
sires to  tell  all  he  knows,  and  his  credibility  is  unim- 
peachable. 

The  first  thing  to  ascertain  in  cross-examining  a 
witness  of  this  class,  is  whether  he  has  any  strong 
lias  or  prejudice  in  the  matter  under  inquiry.  One  or 
two  carefully  worded  questions  will  discover  this,  if 
the  cross-examiner  has  not  already  learned  this  from 
his  answers  in  chief.  Suppose,  for  example,  he  is  a 
clergyman,  and  the  question  is  as  to  a  certain  place  of 
entertainment  being  a  nuisance  either  as  being  badly 
conducted  or  conducing  to  immorality.  He  tells  truth- 
fully enough  what  he  has  seen,  and  speaks  with  indig- 
nant or  pathetic  tones  of  the  vicious  example  to  the 
inhabitants  of  the  neighborhood.  In  his  evidence  in 
chief  he  will  speak  in  general  terms,  probably,  and  not 
descend  to  particular  instances;  but  the  advocate  will 
learn,  by  closely  watching,  whether  he  has  any  particu- 
lar examples  of  debauchery  or  profligacy  to  depose  to. 
Of  course,  he  is  not  to  draw  these  from  him  if  he  have 
any ;  this,  of  course,  he  will  carefully  avoid,  but  if  the 
witness  has  not  referred  to  particular  instances,  the 
cross-examiner  may  safely  proceed  to  lead  him  to 
condemn  all  places  of  public  amusement  of  a  similar 
kind.  If  he  leads  him  gently  he  will  follow  with  re- 
markable docility.  This  course  has  been  pursued  by 
eminent  advocates  with  great  success.  A  man  who 
condemns  all  alike  is  not  the  witness  to  impress  a  jury 
with  the  value  of  his  evidence  in  the  particular  in- 


180  AMERICAN     ADVOCACY. 

stance,  especially  where  it  is  far  more  a  matter  of 
opinion  than  fact. 

§  138.  The  Convict  as  a  Witness.— It  is  by  no  means 
unnecessary  to  say  that  if  a  convict  comes  into  the 
witness-box,  it  is  idle  to  attack  his  credit  through  his 
character.  Every  young  advocate  thinks  there  is  such 
an  opening  here,  and  the  temptation  is  doubtless  great. 
But  there  is  no  need  to  attack  when  the  fortress  has 
surrendered.  The  man  stands  confessedly  as  bad  as 
bad  can  be;  and  to  carry  him  through  all  the  scenes 
of  his  profligacy  and  crimes  would  be  but  gratuitous 
cruelty,  and  would  have  no  effect  with  the  jury  except 
in  creating  some  amount  of  sympathy  on  his  behalf. 
They  know  well  enough  how  to  discount  the  evidence 
of  so  abandoned  a  man;  but  they  know,  too,  (and  that 
is  the  point  to  remember)  that  the  most  detestible 
villain  is  yet  capable  of  telling  the  truth.  A  convict 
will  sometimes  defeat  a  cross-examining  counsel  to 
such  an  extent  that  he  will  arouse  sympathy  for  him- 
self and  prejudice  against  the  learned  gentleman.  It 
is  the  weakest  remnant  of  a  very  old  style  of  advocacy 
to  ask  the  jury,  "  Would  you  believe  such  a  villain,  on 
his  oath?"  The  answer  is,  Of  course,  they  would,  as 
against  another  villain  not  upon  his  oath,  and  against 
whom  he  is  circumstantially  testifying,  unless  the  ad- 
vocate can  break  down  his  evidence  •  the  latter  will  not 
do  that  by  hammering  away  at  his  character.  The 
jury  may  not  like  the  man  any  more  than  does  the  ad- 
vocate, but  they  may  like  the  advocate's  client  less; 
and  between  two  villains,  the  one  in  the  witness-box 
and  the  other  in  the  dock,  as  a  rule,  they  will  lean  to- 
wards the  former;  he,  at  all  events,  is  for  the  state — 
ut  present. 

It  is  when  his  motives  lead  him  to  the  falsification 


CLASSES  OP  WITNESSES.  181 

of  facts,  and  the  falsification  is  apparent  or  highly 
probable,  that  the  cross-examiner  can  dispose  of  this 
witness.  Then  will  he  be  able  to  take  character,  mo- 
tive, false  or  exaggerated  statements,  contradictions 
and  probabilities  and  throw  them  into  the  scale  against 
the  apparently  truthful  portions  of  his  testimony.  Or 
if  the  advocate  even  go  so  far  as  to  show  improbabili- 
ties in  his  story,  the  witness  will  need  much  corrobo- 
ration  to  make  it  acceptable  to  the  jury.  They  will 
treat  him  as  they  would  a  knave  in  the  market  whom 
they  should  detect  with  one  or  two  bad  coins  among 
a  handful  of  apparently  good  ones.  They  would  have 
no  dealings  with  him ;  not  because  there  were  no  good 
pieces,  but  because  suspicion  attached  to  all.  To  re- 
peat, it  is  testimony  and  not  character  the  cross-ex- 
aminer must  deal  with  in  this  witness.  Misfortune 
is  misfortune,  whether  it  comes  from  a  too  lavish  ex- 
ercise of  virtue  or  a  crime;  and  cruelty  is  cruelty, 
whether  inflicted  on  saint  or  sinner.  If  the  advocate 
would  succeed  with  a  clever  scoundrel,  he  must  break 
him  down  by  art,  not  by  violence. 

§  139.  The  Private  Detective  as  a  Witness.— The 
private  detective  belongs  properly  to  the  class  of  pro- 
fessional witnesses.  And  here,  as  the  converse  of  the 
last  it  "should  be  remembered  that  the  value  of  this 
witness'  testimony  will  be  in  exact  proportion  to  the 
estimate  the  jury  form  of  his  character.  If  it  be  un- 
impeachable for  disinterestedness,  so  much  the  more 
difficult  to  deal  with  in  cross-examination;  but  if  the 
witness  be  one  who  is  constantly  giving  evidence  as  a 
part  of  his  professional  duties,  it  will  be  somewhat  dis- 
credited. What  is  always  being  done  sometimes  gets 
done  mechanically  and  without  any  mental  influence.1 

1  "I  applied,"  says  one  witness,  "the  usual  tests,  and  found  tracer 


JSl2  AMERICAN     ADVOCACY. 

The  office  of  the  private  inquiry  man  is  distasteful 
to  most  people,  but  the  advocate  cannot  well  reach 
him  in  cross-examination  as  to  that.  If  he  shows  that 
he  obtains  his  livelihood  by  getting  up  cases  and  then 
proving  them,  it  will  be  sufficient  for  his  purpose  with- 
out wounding  his  feelings.  The  cross-examiner's  ob- 
ject is  to  give  a  color  to  his  evidence,  and  he  may,  by 
the  exercise  of  a  little  skill.  The  absolute  positiveness 
with  which  this  witness  gives  his  evidence  is  a  point  in 
the  advocate's  favor;  the  impossibility  of  his  having 
been  mistaken  is  another;  simply  because  the  jury  will 
not  believe  in  the  infallibility  of  a  human  being  in  car- 
nal matters.  And  if  the  witness  might  have  been  mis- 
taken they  will  not  believe  him  either.  So  that  the 
circumstances  under  which  the  detective  has  made  his 
discovery  are  matters  worthy  of  the  cross-examiner's 
skill.  With  his  suspicion  is  almost  guilt,  and  almost 
every  circumstance  from  his  point  of  view  is  suspi- 
cious. Once  assume  a  person's  guilt,  and  the  most  in- 
nocent circumstance  will  become  invested  with  suspi- 
cion; many  facts  will  be  unconsciously  exaggerated, 
first  in  the  mind  of  the  witness,  and  then  in  his  evi- 
dence :  suspicion,  in  short,  will  become  facts  and  facts 
guilt.  There  is  no  more  dangerous  class  of  evidence 
than  that  of  the  private  detective,  but  none  that  a  skill- 
ful counsel  can  more  easily  demolish,  unless  it  is  sup- 
ported by  independent  testimony. 

§  140.  The  Handwriting  Expert  as  a  Witness.— 
Here  is  the  witness  to  prove  that  the  prisoner  is  guil- 

of  poison."  No  one  dreamed,  till  the  cross-examination  disclosed  the 
fact,  that  the  traces  were  introduced  by  the  test  itself.  Some  profes- 
they  are  swearing  away  a  man's  life,  or  his  wife,  or  his  estate.  It's 
sional  witnesses  seem  to  have  no  appreciation  of  the  awful  fact  that 
only  a  matter  of  science  with  them. 


CLASSES  OF  WITNESSES. 

ty.  "No,  no,"  says  the  expert  to  himself,  "not  I.  You 
have  given  me  specimens  of  handwriting  to  examine; 
I  say  they  are  in  the  handwriting  of  the  prisoner. 
You  say  if  he  wrote  them  he  is  guilty,  and  so  will  say 
the  jury."  Beautiful  distinction,  but  did  you  happen 
to  know  the  probable  effect  of  the  examination  before 
you  made  it,  Mr.  Grapho?  Here  is  a  dangerous  ques- 
tion when  the  witness  is  watching  the  advocate  as  a 
doctor  would  the  changing  expression  on  a  patient's 
face,  and  arranging  his  thoughts  scientifically,  as  he 
gracefully  toys  with  his  invaluable  glasses.  The  ad- 
vocate must  not  think  he  must  put  so  important  a 
question  in  that  form?  The  witness  sees  it — -sees  his 
thoughts  through  it,  as  though  it  were  a  lens;  sees  his 
weakness  through  it.  The  cross-examiner  must  as 
carefully  conceal  his  meaning  from  this  witness  as 
though  he  were  sending  a  telegram  through  him  to  the 
jury  in  cipher,  so  that  he  should  not  read  it.  The  an- 
swer to  this  question,  when  properly  put,  may  be  very 
near  the  foundation  of  the  cross-examiner's  defense. 
What  the  advocate  wants  to  know  is,  what  influence 
was  at  work  in  his  mind  ivhich  may  have  led  him  to  a 
particular  conclusion  with  reference  to  the  loop  of  a 
G  or  the  twist  of  a  Y.  How  came  he  to  think  it  was 
like  the  prisoner's?  Did  he  know  that  a  murder  had 
been  committed? 

The  witness  was  not  told,  but  if  he  had  read  of  the 
murder  he  would  know  two  facts ;  one  that  a  document 
was  left  by  the  murderer  stating  that  someone  else 
had  committed  it ;  the  other  that  a  shopman  was  the 
last  person  seen  with  the  deceased;  and  he  would  know 
a  third  fact  when  the  books  in  which  were  entries  made 
by  the  shopman  were  given  into  his  hands  to  compare 
with  the  fatal  paper.  So  it  is  seen  the  expert  would 


j[g4  AMERICAN     ADVOCACY. 

have  no  vague  or  indefinite  idea  of  what  he  was  about. 
That  is  the  first  point  to  establish :  not  how  long  he  has 
been  studying  his  profession.  The  next  point  to  make 
is  as  to  the  mode  of  examination  by  this  experienced 
expert.  And  here  the  advocate  will  be  amazed  at  the 
elaboration  of  the  system  for  finding  out  nothing, 
which  has  been  invented  by  science.  He,  "first  of 
all,"  he  says,  takes  the-  "undoubted  handwriting  of 
the  prisoner's;"  this  i?  one  of  his  scientific  phrases— 
"the  undoubted  handwriting  of  the  prisoner's;"  and 
he  "examines  for  peculiarities" — another.  But  this 
is  begging  the  question  at  once, — are  they  peculiari- 
ties? He  calls  them  so  and  stamps  them  with  guilt.1 

i  For  instance,  the  witness  finds  "on  line  thirteen  of  page  fourteen, 
your  honor,"  nodding  at  the  judge  with  nervous  respect.  "Line 
thirteen  of  page  fourteen" — says  the  judge,  counting  vigorously — 
"yes,  I  see;  I've  got  it."  "Your  honor  will  find" — here  a  sly  look  at 
counsel,  as  much  as  to  say,  now  listen  to  this  revelation — 'the  down 
stroke  of  the  F  in  fool  is  at  a  very  remarkable  angle,  an  angle  of 
fifty-four  and  a  half.  Now,  this  angle  occurs  only  about  once  in 
fifty-four  millions  of  handwritings.  Then  I  find  in  looking  at  the 
disputed  handwriting  at  page  four  of  the  day-book,  line  twenty-two, 
the  F  in  the  word  foot  has  precisely  the  same  angle  and  the  peculiar 
crook,  if  I  may  so  call  it," — pauses  as  though  this  powerful  expres 
sion  must  elicit  silent  applause.  The  advocate  should  mark  this 
scientific  discovery  and  cross-examine  upon  it,  because  it  is  totally 
inapplicable  and  no  more  a  "crook"  or  a  peculiarity  than  he  will 
find  in  the  handwriting  of  nine  persons  of  the  prisoner's  class  out  ot 
ten.  This  is  a  new  symptom,  and  all  new  symptoms  are  in  the  cross- 
examiner's  favor  if  he  can  use  them. 

"If  you  turn,  your  honor,"  says  the  witness,  stooping  down  over 
the  book  and  now  looking  up  at  the  judge,  and  now  looking  down 
at  the  insect  he  has  under  observation;  shaking  his  glasses  twice 
above  his  shoulder  with  his  right  hand  as  he  looks  up,  and  pressing 
his  book  twice  with  the  open  palm  of  his  left  as  he  looks  down,  as 
if  he  had  just  clapped  it  on  a  butterfly;  "if  your  honor  looks  at  the 
bottom  line  but  five  on  page  four  you  will  find  a  remarkable  pecu- 
liarity— it's  a  twist  just  where  the  F  joins  on  to  the  B,  giving  the 
P  a  humpbacked  appearance.  (A  pause.)  Now,  your  honor  will 
find  that  dislocation  or  twist  of  the  spine  of  the  F  occurs  in  no 


CLASSES  OF  WITNESSES.  185 

Here  is  the  cross-examiner's  opportunity.  Once 
show  that  the  prisoner's  life  depends  upon  the  down- 
stroke  of  a  "D"  or  the  upstroke  of  a  "c,"  the  cross- 
ing of  a  "T"  or  the  dot  of  an  "i,"  and  he  will  live. 
There  are  such  things  as  forgeries,  and  forgers  imi- 
tate peculiarities.  Handwriting  is  seldom  to  be  be- 
lieved, even  when  it  speaks  the  truth. 

§  141.  The  Medical  Witness.— With  regard  to  medi- 
cal opinion,  Sir  Alexander  Cockburn  said:  "A  medi- 
cal man  ought  to  be  asked  his  opinion  on  the  supposi- 
tion only  that  certain  symptoms  existed."  This  pas- 

lesg  than  two  places  In  the  undoubted  handwriting  of  the  pris- 
oner." (Sensation.) 

Next  comes  a  cross  of  a  T  at  a  very  acute  angle  which  hs  finds  in 
other  places  as  well;  then  there  is  the  "Convolution  of  the  O." 
"This  convolution  occurs  no  less  than  five  times  in  the  fatal  docu- 
ment and  five  times  in  the  book,  a  very  remarkable  coincidence, 
your  honor."  This  is  said  at  an  agle  of  forty-five.  "Next,  your 
honor,  there  is  a  capital  I,  and  I  particularly  call  your  honor's  at- 
tention to  the  perpendicularity  of  that  I;  or  rather,  I  should  say,  to 
express  myself  with  more  scientific  accuracy,  the  want  of  perpen- 
dicularity of  the  I."  (The  I  looks  indeed  as  if  it  had  been  out  all 
night.)  "Now,  that  absence  of  perpendicularity  occurs  three  times 
in  the  undoubted  handwriting  of  the  prisoner,  and  no  less  than 
twice  in  the  disputed  handwriting.  There  is  next,  your  honor,  at 
page  five,  line  seventeen,  an  O  which  is  made  like  a  semibreve. 
Then,  there's  a  J  of  a  very  remarkable  and  pronounced  kind;  it 
will  be  observed  that  the  loop  or  convolution  is  elongated.  This  is 
at  page  six,  line  two;  and  it  occurs  twice  in  the  fatal  document, 
and  once  in  the  undoubted  handwriting.  The  next  letter  I  come  to 
IB  a  W,  which  is  found  on  page  seven,  line  eight  of  the  day-book, 
and  occurs  three  times  in  the  fatal  document.  Your  honor  will  ob- 
serve that  it  is  serrated,  or  (turning  to  the  jury)  like  a  saw,  gen- 
tlemen. And  that  same  serrated  appearance  is  observable  in  the 
M's  of  the  undoubted  handwriting  of  the  prisoner." 

And  thus  through  the  alphabet  the  witness  has  hooks,  crooks, 
crosses,  convolutions,  semibreves,  humpbacks,  dislocations  and  de- 
formities of  all  sorts,  and  letters  that  look  like  murderers,  burglars 
and  other  disreputable  persons,  with  the  common  hangman  amongst 
them.  But  bring  common  sense  to  bear  upon  it  in  cross-examina- 


186        .  AMERICAN     ADVOCACY. 

sage  is  quoted  as  authority  for  saying  that  medical 
testimony  should  be  based  not  upon  a  mere  theory 
with  a  view  to  fit  in  the  facts  of  a  particular  case  to 
it,  but  that  the  theory  should  be  constructed  from  the 
proved  facts.  Given  certain  symptoms,  or  facts,  the 
scientific  opinion  should  be  given  upon  them,  and  upon 
them  only.  A  great  deal  of  what  is  termed  medical 
evidence  is  not  medical  evidence  in  any  sense  of  the 
term,  except  that  it  is  given  by  a  medical  practition- 
er: and  in  the  same  sense  as  a  woman's  might  be  said 
to  be  "female  evidence."  Much  that  a  scientific  wit- 


tion;  so  shall  the  advocate  reduce  these  exaggerated  peculiarities 
to  the  natural  tendency  of  persons  to  copy  one  another.  We  are 
such  Imitative  creatures  that  we  copy  when  we.  do  not  intend  to, 
and  often  even  against  our  wills. 

"I  find,"  continues  this  field-marshal  of  pot-hooks  and  hangers, 
"that  there  is  a  remarkable — " 

Pray  stop  him,  my  iearned  friend! 

"One  moment,  Mr.  Witness!" 

"Excuse  me,"  remonstrates  the  man  of  letters,  jerking  his  spec- 
tacles at  the  presumptuous  counsel. 

"Forgive  me,"  implores  the  latter,  "but  what  are  you  looking 
at?" 

"I  am  looking  at  the  day-book,  sir?" 

"What  part  of  the  day-book,  sir?" 

"Excuse  me,  sir;  but  if  I  am  not  to  go  In  my  own  way,  I  cannot 
go  on  at  all.  Your  honor — " 

But  "your  honor"  is  not  there  to  assist  the  prosecution. 

"Are  you  comparing  the  proved  handwriting  of  the  prisoner  in 
the  day-book  with  the  murderer's  paper?" 

"I  am  comparing,  sir,  the  entries  in  the  day-book  which  I  have 
compared  with  other  entries,  and  I  find — " 

"You  will  shut  up  that  book,  then,  if  you  please." 

"Really,  sir,  if  I  am  not  to  go  in  my  own.  way,  I  am  no  use — " 

Judge:  "If  you  are  comparing  entries  not  proved,  with  entries 
that  are  proved,  to  show  that  they  hava  similar  characteristics  to 
those  shown  on  the  murderer's  paper,  that  is  not  evidence." 

"Then  I  cannot  go  on,  your  hcnor,"  closing  his  book  with  a  bang! 
Shut  up.' 


CLASSES  OF  WITNESSES.  187 

ness  gives  might  be  given  as  well  by  an  ordinary  per- 
son, and  very  often  a  great  deal  better.1 

If  one  looks  at  a  plain  fact  through  the  lens  of  scien- 
tific language  its  shape  usually  becomes  distorted. 
Giving  a  man  a  " black  eye"  may  be  considered  a 
trifling  offense,  and  a  jury  might  acquit ;  but  impress 
them  with  the  idea  that  the  prisoner  caused  "extrav- 
asation of  blood  under  the  left  orbit,"  and  he  is  re- 
garded as  a  monster  of  cruelty  to  whom  no  mercy  can 
be  shown.2 


His  evidence  Is  accordingly  struck  out,  and  all  his  elaborate  the- 
ories based  on  Imaginary  likenesses  are  dissolved. 

1  "I    discovered    considerable    ecchymosis    under    the    left    orbit, 
caused  by  extravasation  of  blood  beneath  the  cuticle,"  said  a  young 
house  surgeon  In  case  of  assault. 

Baron  Bramwell:  "I  suppose  you  mean  the  man  had  a  black 
eye?"  Scientific  Witness:  "Precisely,  my  lord." 

Baron  Bramwell:  "Perhaps  if  you  said  so  in  plain  English,  those 
gentlemen  would  better  understand  you?"  "Precisely,  my  lord," 
answered  the  learned  surgeon,  evidently  delighted  that  the  judge 
understood  his  meaning,  and  accepting  the  rebuke  as  a  compliment. 

2  Apropos    of    the    quickness    with    which    medical    practitioners 
sometimes  arrive  at  a  conclusion,  here  Is  a  case  that  occurred  some 
years  ago.     A  woman  who  had  cohabited  with  a  tradesman  in  a 
country    village    suddenly    disappeared.     Her    paramour    gave    out 
that  she  had  gone  to  America.     Some  years  after,  a  skeleton  was 
found  in  the  garden  of  the  house  where  she  had  lived.     On  exami- 
nation by  a  medical  man  he  at  once  pronounced  it  to  be  that  of  the 
missing   icoman.     He  formed  this  opinion   from  the   circumstance 
that  one  of  the  teeth  was  gone,  and  that  he  had  extracted  the  cor- 
responding one  from   the   woman   some  years  before.     Upon   this 
the  prosecution  was  instituted,  and  the  man  was  committed  for 
trial  to  the  assizes.     Fortunately  there  was  time  before  the  trial 
came  on  for  a  further  investigation  of  the  garden  where  the  skele- 
ton was  found,  and  on  digging  near  the  spot  another  skeleton  was 
discovered,  and  then  another,  and  another;  then  several  more.  This 
threw  some  doubt  upon  the  identification  of  the  bones  in  question, 
and  on  further  inquiries  being  made  it  turned  out  that  the  garden 


188  AMERICAN     ADVOCACY. 

§  142.  The  Vanity  of  Witnesses.— There  are  other 
witnesses,  doubtless,  slightly  varying  in  their  pecu- 
liarities of  disposition  and  temper,  but  these  the  read- 
er will  easily  note  from  his  own  observation,  and  we 
doubt  not  will  find,  on  examination,  that  most  of  them 
may  be  included  within  the  classes  enumerated. 

But  of  whatever  types  they  may  be,  and  however 
much  they  differ  from  one  another,  there  is  one  weak- 
ness which  runs  through  them  all,  and  that  is  vanity. 
No  human  being  is  exempt  from  its  influence ;  and  the 
only  difference  between  one  man  and  another  in  this 
respect  is  as  to  the  object  of  his  vanity  and  the  effect 
of  it  upon  the  other  attributes  of  his  nature.  One 
man's  vanity  may  impel  him  to  aspire  to  a  coronet, 
another's  only  to  wear  his  hat  a  little  on  one  side  and 
to  put  his  thumbs  in  the  armholes  of  his  waistcoat. 

had  once  been  a  gypsy  burial-ground.  It  need  scarcely  be  added 
that  the  prosecution,  which  had  been  vigorously  taken  up  by  the 
government,  was  at  once  vigorously  abandoned. 


CHAPTER  XIII. 


TACT  AND   TACTICS. 


§143.  The  Meaning  and  Value 
of  Tact  and  Tactics  to 
the  Advocate. 

144.  Delicacy    of    the    Proceed- 

ing     to      Impanel      the 
Jury. 

145.  Ascertaining        Motives 

Tending     to     Influence 
the  Jury. 

146.  Determining    the    Leading 

Point  in  the  Case. 

147.  Proper        and        Improper 

Openings. 

148.  What      Witnesses      Should 

be  Called  and  in  What 
Order. 

149.  Superior    Value     of     Oral 

Testimony     to    Written 
Depositions. 

150.  How  to   Take  Care   of  the 

Weak  Point  in  a  Case. 

151.  Admissions  by  Counsel  or 

His  Client. 


§152.  Calculating  the  Value  of 
the  Evidence  or  the 
Verdict  of  the  Jury. 

153.  The    Value    of    the    "Last 

Word." 

154.  Adaptation    and    Arrange- 

ment of  the  Evidenti- 
ary Forces  in  the  Clos- 
ing Address. 

155.  The    Court  —  Overcoming 

the  Pre-Conceptions  of 
the  Judge. 

156.  The       Court  —  Assuming 

that  the  Court  is  Ignor- 
ant of  the  Law. 

157.  How  to  Meet  an  Unscrup- 

ulous and  Ill-Natured 
Opponent. 

158.  Under     What      Conditions 

an  Advocate  Profits  by 
Delay. 

159.  Danger       in       Wandering 

from  the  Main  Point. 


§  143.  The  Meaning  and  Value  of  Tact  and  Tactics 
to  the  Advocate.— Tact  is  defined  by  Webster  as  a 
"sensitive  mental  touch;  the  ready  power  of  appre- 
ciating and  doing  what  is  required  by  circumstances."1 


i  The  following  quotation,  which  we  have  taken  the  liberty  to 
alter,  is  very  pertinent: 


190  AMERICAN     ADVOCACY. 

Tact,  as  thus  defined,  is  quite  easily  seen  to  be  a 
very  important  part  of  a  lawyer's  equipment,  Many 
lawyers  of  great  mental  ability  have  been  failures  as 
advocates  because  of  the  lack  of  this  one  quality.  They 
always  manage  to  injure  some  one's  feelings  in  a  trial; 
they  bring  the  jury  and  the  judge  to  regard  them  un- 
favorably; they  constantly  fail  to  take  advantage  of 
opportunities ;  and  proceed  on  their  ponderous  way  to 
inevitable  defeat.  It  is  sometimes  said  of  an  advocate 

"For  a  thousand  who  can  speak  there  is  but  one  who  can  think, 
for  a  thousand  who  can  think  there  is  but  one  who  can  see.  The 
successful  lawyer  has  the  open  vision.  There  is  no  blind  side  to 
either  his  eye  or  brain.  Watchful  as  a  lynx,  with  every  faculty  of 
the  intellect  strongly  concentrated  upon  the  prospect,  not  a  con- 
tingency escapes  him.  A  factor  so  subtle  in  its  nature,  so  incom- 
prehensible in  its  relation  to  other  elements,  and  so  susceptible  of 
marvelous  growth  under  suitable  conditions  and  by  reason  of  thor- 
ough cultivation,  baffles  the  English  language  for  an  abstract  defi- 
nition. The  one  word  'tact'  comes  the  nearest  to  it.  Tact  is  de- 
fined as  the  ready  power  of  appreciating  and  doing  what  is  requir- 
ed by  circumstances.  Technically  speaking,  tact  may  mean  touch, 
discrimination,  wisdom  or  skill.  Touch  in  the  sense  of  manipula- 
tion— 'throwing  out  a  feeler' — discrimination  in  the  sense  of  a  nice 
perception  or  appreciation  of  difference,  drawing  fine  lines,  win- 
nowing chaff  from  the  wheat;  wisdom  in  the  sense  of  sagacity, 
grasp  of  intellect,  acuteness,  'having  one's  wits,'  seeing  through  a 
mill  stone;'  and  skill  in  the  sense  of  expertness,  cleverness,  genius 
— 'hitting  the  nail  on  the  head.'  Tact  is  strong  as  Atlas,  graceful 
as  Venus,  fleetfooted  as  Mercury.  He  comprehends  peculiar  situa- 
tions with  a  completeness  that  leaves  out  none  of  the  details.  'Tact 
is  the  eighth  wonder  of  the  world.'  Memory  is  not  tact,  but  tact 
never  forgets.  Perception  is  not  tact,  but  tact  can  see  through  a 
brick  wall.  Reason  is  not  tact,  but  tact  somehow  always  gets  the 
best  of  an  argument.  Talent  is  not  tact,  but  tact  hasn't  any  folded 
in  a  napkin  and  laid  away.  Genius  is  not  tact,  but  tact  is  most  in- 
genius.  Learning  is  not  tact,  but  tact  is  versed  in  all  the  wisdom 
of  the  ages.  Art  is  not  tact,  but  tact  is  an  artist.  Science  is  not 
tact,  but  can  apply  scientific  principles  to  men  and  things.  Cour- 
age is  not  tact,  but  tact  never  pales  with  fear  or  hides  his  face 
with  cowardice.  Common  sense  intensified  is  just  another  name 
for  tact." 


TACT  AND   TACTICS.  191 

— "He  is  not  a  great  lawyer,  but  lie  is  a  very  clever 
law  practitioner."  Study  the  methods  of  one  of  whom 
this  statement  can  be  made;  observe  the  skill  with 
which  he  ingratiates  himself  into  the  favor  of  court  and 
jury;  notice  his  gentle  handling  of  a  stubborn  witness 
until  he  "worms"  out  of  him  the  answer  that  he  de- 
sires ;  watch  him  as  he  studies  the  countenances  of  the 
opposing  witnesses  on  their  examination-in-chief,  and 
see  his  face  light  up  with  intelligent  perception  as  he 
sees  something  lying  hidden  beneath  the  outward  show 
of  facial  and  verbal  expression ;  listen  to  him  as,  in  his 
clear,  convincing  and  winning  manner,  he  presses  home 
his  objection  to  the  introduction  of  some  damaging  evi- 
dence on  the  part  of  his  opponent,  or  the  nice  discrimi- 
nation with  which  he  seeks  to  withdraw  some  evidence 
which  he  himself  is  seeking  to  introduce  from  the  effect 
of  some  rule  of  law  which  would  seem  to  prohibit  its 
introduction.  Let  the  advocate  observe  all  these  things 
and  the  many  other  unwritten  incidents  of  a  trial  in 
which  the  tactful  advocate  is  always  able  to  find  oppor- 
tunities to  further  the  cause  of  his  client,  and  the  stu- 
dent has  received  his  first  lesson  in  the  art  of  legal 
tact,  a  lesson  which  he  can  never  hope  to  learn  out  of 
books  nor  under  the  voice  of  the  lecturer. 

Tactics,  though  akin,  is  nevertheless  quite  a  differ- 
ent thing  from  tact.  Tactics  is  defined  by  Webster  as 
"the  success  and  art  of  disposing  military  and  naval 
forces  in  order  for  battle ;  and  hence  any  system  of  pro- 
cedure. ' '  To  the  advocate  no  general  qualification,  next 
to  tact,  is  so  necessary  as  a  proper  system  of  legal  tac- 
tics. Tactics  in  law  relate  to  the  science  and  art  of  pre- 
senting the  evidence  in  a  masterful  and  convincing 
manner.  Sometimes  an  advocate  who  has  a  good  case 
will  so  awkwardly  present  Ids  evidence  as  to  actually 
court  defeat;  while,  on  the  other  hand,  one  with  only 


192  AMERICAN     ADVOCACY. 

an  indifferent  case  will  so  arrange  the  forces  that  tell 
in  his  favor  that  they  present  an  almost  irresistible 
front.  The  latter  advocate  has  mastered  the  science  of 
legal  tactics.  How  to  present  a  case,  is  indeed  the  ques- 
tion upon  which  the  verdict  will  in  most  cases  proba- 
bly turn.  If  we  examine  the  great  trials,  and  more 
especially  the  speeches  of  the  best  advocates,  it  will 
•be  found  that  the  mode  in  which  the  case  was  pre- 
sented had  much  to  do  with  every  successful  result. 
Particularly  is  this  observable  in  the  defenses  of  Ers- 
kine,  whose  advocacy,  in  its  arrangement  and  order, 
was  so  masterful  and  effective. 

As  we  have  already  intimated,  neither  tact  nor  the 
science  of  tactics  can  be  most  directly  learned  from 
study  or  books;  they  come  rather  from  experience 
and  observation.  What  suggestions  we  offer  here  are 
only  to  warn  the  advocate  against  the  most  glaring 
instances,  of  lack  of  legal  tact  and  the  most  promi- 
nent and  important  rules  in  the  science  of  legal  trial 
tactics. 

§  144.  Delicacy  of  the  Proceeding  to  Impanel  the 
Jury.— Too  many  advocates  handle  a  jury  as  if  the 
fingers  of  their  minds  were  all  thumbs.  They  are 
rude,  boorish,  insolent  and  overbearing.  In  examin- 
ing the  panel  they  pry  into  a  juror's  private  affairs 
as  if  he  were  a  witness  or  a  party  interested  in  the 
case.  Not  only  the  jurors  thus  examined  but  the 
whole  panel,  if  they  are  men  of  spirit,  will  resent  this 
course  of  the  advocate.  Courtesy  is  an  accomplish- 
ment to  any  man ;  but  to  the  advocate  it  is  a  valuable 
asset;  and  nowhere  is  the  lack  of  it  more  painfully 
felt  than  in  the  advocate's  handling  of  the  jury.  In 
the  selection  of  the  jury,  especially,  care  must  be 
taken  to  frame  the  interrogatories  in  such  a  manner 


TACT  AND  TACTICS.  193 

as  not  to  give  offense  and  to  maintain  throughout  the 
entire  proceeding  an  attitude  of  the  strictest  cour- 
tesy. An  advocate  that  makes  a  favorable  impres- 
sion at  this  early  juncture  has  quite  handicapped  his 
opponent.  Of  course,  it  is  important  to  examine 
jurors,  in  most  cases,  to  find  out  what  interest  they 
may  have  in  the  case;  what  knowledge  of  the  facts 
they  may  possess;  what  relationship  any  one  of  them 
may  sustain  to  either  of  the  parties;  what  expres- 
sions of  opinion  may  have  been  uttered  as  to  the 
merits  of  the  case;  what  personal  hostility  may  exist 
between  any  one  of  them  and  either  of  the  parties  to 
the  case;  and  considerations  of  a  similar  nature.  A 
short,  courteous  examination  of  each  member  of  the 
panel  will  generally  be  sufficient  to  find  out  all  the 
advocate  desires  to  'know.  Much  information,  it  must 
be  understood,  will  come  to  the  advocate  by  way  of 
careful  observation. 

Sometimes  the  nature  of  the  case  is  such  that  the 
advocate  has  learned  sufficient  from  his  opponent's 
investigation  to  satisfy  him.  In  such  case  it  is  good 
policy  to  waive  examination.  It  is  always  a  delicate 
proceeding  at  best. 

After  the  advocate  has  completed  his  examination 
the  exercise  of  his  right  to  make  a  certain  number  of 
peremptory  challenges  is  a  matter,  sometimes,  which 
demands  an  intimate  knowledge  of  human  nature. 
The  advocate  must  keep  off  from  the  jury  in  his  case 
any  man  whose  business,  religion,  or  crankish  notions 
of  things  would  influence  his  judgment  on  the  particu- 
lar facts  involved.  In  damage  suits,  for  instance,  of 
servants  against  master,  care  must  be  taken  to  ex- 
clude any  large  employers  of  labor.  So,  also,  in  suits 
involving  the  enforcement  of  the  liquor  laws,  enthu- 

13 


194  AMERICAN    ADVOCACY. 

siasts  in  the  cause  of  prohibition  must  be  challenged 
on  the  one  side  and  anyone  engaged  directly  or  indi- 
rectly in  the  manufacture  or  sale  of  liquor  on  the 
other.  These  are  two  prominent  instances;  others  re- 
quiring a  more  delicate  appreciation  of  human  na- 
ture will  occur  to  the  advocate  who  closely  studies 
the  situation  and  has  a  fair  measure  of  common  sense. 

§  145.  Ascertaining  Motives  Tending  to  Influence 
the  Jury.— It  should  always  be  remembered  that  one 
of  the  most  difficult  things  in  advocacy  is  to  ascertain 
the  motives  which  influence  human  conduct,  and  yet 
these  motives  are  in  a  great  measure  the  advocate's 
guides.    Unless  these  can  be  discovered  the  advocate 
will  be  working  in  the  dark  and  will  only  succeed,  if 
at  all,  by  accident.    If  we  could  look  into  the  minds 
of  the  twelve  jurymen  we  should  probably  find  as 
many  reasons   for   their  verdict.     One  was  predis- 
posed to  believe  a  particular  witness;  a  second  had 
a  similar  predilection    for  another;    a  third    disbe- 
lieved the  defendant  because  he  did  not  like  "the 
looks  of  him;"  a  fourth  was  rather  taken  with  the 
plaintiff's  manner;  a  fifth  had  heard  something  not 
much  to  the  credit  of  the  party  he  meant  to  find 
against ;  and  so  on,  until  you  came  to  the  twelfth,  who 
simply  "jined  in  like"  because  he  was  a  man  of  a  very 
agreeable  nature.    Much  may  depend  upon  the  juror's 
breakfast  or  his  digestion.     With  many  juries  there 
is  the  predominating  thought,  in  spite  of  much  evi- 
dence to  the  contrary,  that  the  plaintiff  is  entitled  to 
something.    Some  think  he  must  be  in  the  right  or  he 
would  never  have  brought  his  action ;  as  they  think  a 
prisoner  must  be  guilty  or  he  would  not  be  on  his 
trial. 


TACT  AND  TACTICS.  195 

§  146.  Determining  the  Leading  Point  in  the  Case. 

—In  most  cases,  if  not  in  all,  there  is  a  leading  point 
which,  if  established,  will  determine  the  verdict.  Be- 
fore the  case  can  be  shaped,  this  point  must  be  dis- 
covered and  placed  in  exactly  its  right  position.  All 
the  evidence  and  all  the  facts  must  be  subordinated 
to  it.  Sometimes  it  happens  that  a  false  point  usurps 
the  position  of  the  true.  This,  however,  it  need 
scarcely  be  said,  is  fatal  to  the  advocate  who  knows 
so  little  of  his  case.  It  is  possible  to  be  drawn  away 
to  a  minor  issue ;  but  if  the  advocate  should  be  he  will 
find  it  difficult  to  get  back  to  the  true  one;  and  it  is 
the  surest  sign  that  he  has  never  mastered  the  rudi- 
mentary principles  of  advocacy.  To  the  unpracticed 
genius  this  seems  so  intolerable  a  blunder,  that  no 
one  could  by  possibility  commit  it.  The  unpracticed 
advocate,  however,  is  the  only  one  who  never  makes 
a  mistake.  Advocacy  is  not  so  easy  as  beating  a 
drum;  and  if  all  the  blunders  of  clever  advocates 
were  to  be  told,  the  student  would  come  to  the  con- 
clusion that  practice  makes  us  most  imperfect;  and 
that  the  art  is  more  calculated  to  benumb  the  facul- 
ties than  to  quicken  them. 

§  147.  Proper  and  Improper  Openings.— We  know 
that  a  case  may  be  opened  in  a  variety  of  ways.  The 
direct  way  is  the  nearest  to  the  verdict.  Sufficient 
rhetorical  skill  to  make  the  advocate's  statement 
agreeable,  and  such  an  arrangement  of  his  evidence 
as  to  make  the  matters  alleged  seem  true,  are  the 
characteristics  of  a  masterful  opening.  To  get  the 
jury  to  accept  his  interpretation  of  the  case  depends 
almost  entirely  on  his  mode  of  putting  it;  this  is  the 
effect  produced  by  harmonizing  evidence  and  making 
his  allegations  look  like  actual  facts;  an  artist  would 


196  AMERICAN     ADVOCACY. 

say — herein  consists  the  art  of  mixing  colors.  What 
the  advocate  requires  is  to  get  it  into  the  minds  of  the 
jury  in  such  order  as  to  make  the  conclusion  clearly 
deducible  from  the  facts.  For  instance:  what  would 
be  the  use  of  cross-examining  to  the  credit  of  a  wit- 
ness when  the  facts  he  has  spoken  to  have  been  proven 
by  persons  of  unimpeachable  character.  The  advo- 
cate may  be  as  " severe"  and  " powerful"  with  him 
as  he  likes,  but  the  jury  will  think  he  is  ruining  the 
case.  Severity  is  not  power,  and  power  is  seldom  se- 
vere. But  suppose  the  advocate  to  be  judicious,  and 
to  refuse  to  turn  him  inside  out.  He  will  perhaps 
endeavor  to  do  something  more  artistic  with  him.  He 
'is  a  witness  vouched  for  by  the  other  side  as  worthy 
of  credit.  Any  answer  the  advocate  can  get  from  him 
which  will  damage  the  evidence  of  the  other  wit- 
nesses will  be  of  immense  value.  He  can  take  him  into 
his  confidence  on  account  of  that  character  which  he 
is  instructed  to  expose.  His  manner  of  handling  him 
is  part  of  the  tactics  of  advocacy,  and,  according  as 
it  is  conciliatory  or  severe,  he  will  make  him  a  witness 
for  or  against  him. 

There  is  one  mode  of  presenting  a  case  which  is 
pretty  sure  to  ruin  it — the  jocular  mode.  An  advo- 
cate who  begins  by  playing  the  fool  is  almost  sure 
to  end  in  making  one  of  his  client.  Jokes  are  not  of 
much  value  to  the  plaintiff,  unless  he  wants  laughter 
instead  of  damages;  while,  on  the  part  of  the  defend- 
ant, they  are  a  poor  answer  to  facts.  Laughing  a 
case  out  of  court  has  been  often  heard  of,  but  never 
accomplished.  No  judge  would  permit  it  unless  he 
preferred  a  joke  to  justice,  and  a  jury  has  never  been 
known  to  laugh  away  a  litigant's  right,1?.  True,  the 
advocate  may  laugh  his  own  case  out  of  court  very 


TACT  AND  TACTICS.  197 

easily ;  and  if  he  have  no  case  he  may  as  well  dismiss 
it  with  laughter  as  with  tears — as  a  bad  soldier  is 
drummed  out  of  the  regiment;  nevertheless,  the 
drumming  ought  not  to  be  the  cause  of  the  dismissal. 
These  remarks,  however,  are  by  no  means  intended 
to  detract  from  the  value  of  humor,  the  efficacy  of 
which  has  been  elsewhere  considered. 

Again,  it  should  be  observed  that  seriousness 
need  not  be  sepulchral.  It  is  in  finding  the  unaffected 
medium  between  these  extravagances  of  style  that 
this  branch  of  the  art  of  advocacy  consists.  The 
advocate  need  not  proceed  as  if  he  were  moving  to 
muffled  drums  and  the  Dead  March;  the  jury  like  a 
brisk  pace  and  a  lively  air.  The  advocate  should 
keep  them  in  good  spirits,  if  he  wants  good  damages. 
Eecollect  they  are  not  being  asked  to  give  their  own 
money  away,  but  other  people's,  and  the  livelier  he 
can  keep  them,  the  more  generous  are  they  likely  to 
be;  damages  are  often  increased  because  the  jury  are 
taken  with  the  advocate's  manner. 

§  148.  What  Witnesses  Should  Be  Called  and  in 
What  Order.— Another  matter  is  worthy  of  attention. 
Advocates  are  often  perplexed  with  the  question, 
"Shall  we  call  witnesses?"  In  the  first  place,  it  is  a 
question  which  the  counsel  should  take  into  his  own 
hands.  No  solicitor  can  answer  it  for  him.  He  can 
but  give  him  the  evidence  upon  which,  in  his  dis- 
cretion, the  advocate  must  decide.  Nor  must  he  in 
the  least  fear  the  too  frequent  lamentation,  "If  we 
had  only  called  our  witnesses!"  But  the  true  test  is 
unmistakable : — Are  tliey  necessary?  If  not,  he  should 
never  sacrifice  the  reply.  There  is  a  further  consid- 
eration, even  if  they  may  be  useful,  but  not  altogether 
necessary,  what  will  be  the  value  of  the  witnesses 


198  AMERICAN    ADVOCACY. 

under  cross-examination?     They  may  look  very  well 
on  paper,  and  put  the  advocate  out  of  court  in  the 
witness-box.     He  is  always  in  danger  from  his  own 
witnesses,  especially  if  he  have  more  than  enough.   As 
a  general  rule,  they  are  worthless  when  the  question 
is  debatable  as  to  whether  he  should  call  them  or  not. 
But  if  called,  does  it  matter  as  to  the  order  in  which 
their  evidence  is  given?     It  matters  much  in  every 
way.     The  advocate  may  lose  the  verdict  through  a 
want   of  connection   and   sequence.     Things   present 
a  vastly  different  appearance  when  they  are  orderly 
arranged,  and  when  they  are  in  confusion.    The  best 
rule,  of  course,  is  for  the  advocate  to  call  his  wit- 
nesses in  such  order  that  their  evidence  will  produce 
the  best  effect  upon  the  jury.     To  do  this  he  must 
adjust  the  parts,  even  the  minutest,  with  a  view  to 
the  general  design. 

This,  too,  may  be  taken  for  granted,  when  a  client 
is  alleged  to  have  committed  a  wrong,  or  to  have 
done  something  which  it  is  necessary  to  disprove; 
not  only  should  he  be  the  advocate's  first  ivitness,  but 
His  denial  should  come  at  the  earliest  moment  in  his 
evidence.  Delay  will  look  like  reluctance,  and  reluct- 
ance like  guilt.  "Whatever  is  the  main  point  in  the 
advocate's  case  as  a  rule,  should  be  placed  in  the  fore- 
front by  the  principal  person  concerned.  The  rea- 
son is  obvious;  the  impression  being  made  at  the 
earliest  moment,  the  effect  will  be  greater  and  more 
enduring,  as  farther  removed  from  the  immediate 
attack. 

The  "order  of  time"  has  been  referred  to  in  a  pre- 
vious chapter,  as  a  matter  of  importance;  the  order 
of  value  is  of  no  less  moment.  After  the  leading  fact 
has  been  placed  in  its  central  position,  the  witnesses 


TACT  AND  TACTICS.  199 

should  be  called,  so  as  not  only  to  confirm  it,  but  so 
that  the  evidence  may  be  self-supporting,  by  its  com- 
pactness and  completeness,  as  the  parts  of  a  well- 
turned  arch  which  no  pressure  can  destroy.  Nor 
should  the  evidence  be  produced  only  with  a  view  to 
the  general  design;  there  is  something  else  that  can 
be  done,  if  you  are  for  the  defendant.  Having  ob- 
served the  testimony  given  by  the  other  side,  the  ad- 
vocate's own  evidence  may  be  arranged  not  only  with 
a  view  to  contrast  but  so  that  it  may  seem  to  be  in- 
rested  with  a  greater  degree  of  probability  than  the 
opposing  evidence. 

With  regard  to  the  value  of  witnesses,  it  should 
not  be  forgotten  that,  if,  after  the  plaintiff  or  defend- 
ant (as  the  case  may  be),  the  advocate  proceed  to 
call  his  best  witness,  and  then  graduate  them  until 
he  comes  to  the  worst,  his  case  will  be  tapered  down 
until  it  will  seem  to  rest  upon  its  weakest  witness. 
The  jury  will  follow  the  course  of  the  evidence  to  its 
vanishing  point,  and  the  advocate  will  wonder  why 
it  had  no  more  effect  than  to  make  them  shake  their 
heads.  If  the  advocate  call  a  number  of  weak  wit- 
nesses one  after  the  "other,  the  jury  will  come  to  the 
conclusion  that  the  case  is  weak,  and  the  evidence  of 
the  stronger  witnesses  will  be  proportionally  dis- 
counted; whereas,  if  he  has  a  number  of  witnesses, 
weak  and  strong,  but  all  necessary,  he  should  lead  off 
with  a  small  witness  from  his  strongest  suit.  It  may 
be  that  the  order  of  time  or  circumstances  will  decide 
as  to  the  next;  but  he  should  always  endeavor  to  fol- 
low up  weakness  with  strength.1 

1  Let  us  suppose  the  witnesses  are  pretty  equal  as  to  the  value 
of  their  testimony,  and  that  the  order  of  time  is  not  necessary  to 
be  observed;  is  there  any  reason  why  one  should  he  called  into  the 
box  earlier  than  another?  Undoubtedly.  They  are  not  all  equally 


200  AMERICAN     ADVOCACY. 

Another  point  must  not  be  omitted.  A  story  told 
in  parts  by  different  witnesses  is  stronger  tlian  the 
same  story  repeated  by  the  whole  of  them.  It  will 
seem  to  be  truer,  and  even  look  as  if  it  must  be  true; 
whereas,  repetition,  especially  in  details,  often  makes 
it  look  as  if  it  must  be  false.  A  further  advantage 
attends  the  divisional  form — there  will  be  less  surface 
exposed  for  cross-examination. 

§  149.  Superior  Value  of  Oral  Testimony  to  Written 
Depositions. — As  far  superior  as  a  warm,  affectionate 
embrace  is  to  a  cold  and  formal  introduction,  so  far 
superior  are  the  burning  words  of  an  oral  testimony 
to  the  cold,  black  type  of  a  written  or  printed  deposi- 
tion. An  advocate  makes  a  great  mistake  to  intro- 
duce the  deposition  of  any  important  witness  whom 
he  might,  by  any  possible  means,  have  at  the  trial. 
Indeed,  in  most  cases,  it  would  be  profitable  even  to 
defray  the  expense  of  a  long  journey  in  order  to  get 
the  witness  into  court  rather  than  to  be  compelled  to 
rely  upon  his  deposition.  The  reasons  for  this  are 
obvious.  In  the  first  place,  testimony  by  deposition 
is  lifeless;  it  lacks  that  fire,  that  spontaneity,  that 
impulsive  iteration  of  oral  testimony  which  often 
compels  belief.  In  the  second  place,  jurors  are  gen- 
erally suspicious  of  such  testimony;  they  are  not 
aware  of  the  auspices  under  which  it  was  given,  and 

capable  of  resisting  cross-examination.  If  the  advocate  take  one  of 
the  worst  in  this  respect  before  the  others,  and  he  should  stammer 
from  nervousness,  or  give  the  wrong  answer  from  misunderstand- 
ing, the  examiner  has  done  at  least  two  bad  things  for  his  client; 
he  will  pretty  nearly  have  ruined  his  case  with  the  jury;  and  he 
will  have  put  so  much  heart  into  his  adversary  that  he  will  cross- 
examine  the  rest  with  renewed  vigor;  whereas,  if  he  put  a  witness 
into  the  box  who  can  stand  the  cross-examination,  the  contrary 
effects  will  be  produced.  Nothing  is  more  disheartening  than  fail- 
tire  in  cross-examination,  except  failure  in  resisting  it. 


TACT  AND  TACTICS.  201 

are  inclined  to  the  opinion,  and  not  always  unjustly, 
that  the  answers  to  the  interrogatories  have  been 
carefully  studied  and  couched  in  language  calculated 
more  to  serve  the  purposes  of  the  party  in  whose  in- 
terest the  witness  testifies  than  the  demands  of  trnth 
and  justice.  The  jury  feel  also  that  they  have  been 
denied  the  opportunity  to  "look  the  witness  in  the 
eye"  and  thus,  in  this  very  effective  and  often  con- 
clusive manner,  test  the  credibility  of  the  evidence 
he  offers.  In  the  third  place,  many  important  points 
in  the  testimony  of  the  witness  overlooked  in  the 
preparation  of  interrogatories  are  brought  forcibly 
to  the  mind  of  the  examiner  under  the  stimulus  af- 
fected by  the  heat  and  vigor  of  the  contest.  From 
every  point  of  view.,  therefore,  oral  testimony  is  to  be 
preferred  to  written  depositions.1 

§  150.  How  to  Take  Care  of  the  Weak  Point  in  a 
Case.— We  must  not  omit  a  matter  which  is  constantly 

i  The  difference  between  depositions  and  oral  examinations  in 
open  court  is  well  stated  by  Blackstone:  "This  open  examination 
of  witnesses,  viva  vocc,  in  the  presence  of  all  mankind,  is  much 
more  conducive  to  the  clearing  up  of  truth  than  the  private  and 
secret  examination  taken  down  in  writing  before  an  officer,  or  his 
clerk,  in  the  ecclesiastical  courts,  and  all  others  that  have  borrowed 
their  practice  from  the  civil  law;  where  a  witness  may  frequently 
depose  that,  in  private,  which  he  would  be  ashamed  to  testify  in 
a  public  and  solemn  tribunal.  There,  an  artful  or  careless  scribe 
may  make  a  witness  speak  what  he  never  meant,  by  dressing  up 
his  depositions  in  his  own  forms  and  language';  but  he  is  here  at 
liberty  to  correct  and  explain  his  meaning,  if  misunderstood,  which 
he  can  never  do  after  a  written  deposition  is  once  taken.  *  *  *  In 
short,  by  this  method  of  examination,  the  persons  who  are  to  de- 
cide upon  the  evidence  have  an  opportunity  of  observing  the  qual- 
ity, age,  education,  understanding,  behavior  and  inclinations  of  the 
witness;  in  which  points  all  persons  must  appear  alike,  when  their 
depositions  are  reduced  to  writing  and  read  to  the  judge  in  the  ab- 
sense  of  those  who  made  them;  and  yet  as  much  may  be  frequently 
collected  from  the  manner  in  which  the  evidence  is  delivered  as 
from  the  matter  of  it."  3  Blackstone's  Commentaries,  373. 


202  AMERICAN     ADVOCACY. 

peeping  out,  however  carefully  it  is  concealed,  and 
that  is  the  weak  point  in  the  advocate's  case;  there 
it  is,  conceal  it  as  he  may.  If  he  wants  it  to  tell  as 
forcibly  against  him  as  it  can,  leave  it  to  the  mercy  of 
the  other  side  to  drag  it  out.  If  he  desire  it  to  be 
presented  in  its  most  favorable  aspect,  introduce  it 
himself.  A  man  is  always  tenderer  to  his  own  faults 
than  he  is  to  other  people's.  With  proper  manage- 
ment a  weakness  may  sometimes  be  turned  to  advant- 
age. A  good  sneer  from  the  advocate's  opponent  at 
the  poverty  or  misfortune  of  his  client,  will  tend  to 
the  solace  of  the  one  and  the  mitigation  of  the  other. 
A  sneer  may  be  the  very  worst  of  advocacy,  but  that 
does  not  prevent  a  bad  advocate  from  using  it.  Nay, 
it  is  no  advocacy  at  all,  it  is  sheer  unmitigated  abuse; 
but  there  are  clients  who  will  pay  even  for  that.  En- 
deavors to  excite  prejudice  generally  succeed  in 
evoking  sympathy.  Nothing  is  so  fatal  to  a  speech  or 
a  cross-examination  as  an  exhibition  of  ill-feeling. 

§  151.  Admissions  by  Counsel  or  His  Client.— Some 
of  the  greatest  dangers  and  embarrassments  of  a  law- 
suit arise  from  loose  and  reckless  admissions  on  the 
part  of  counsel  or  his  client  before  or  during  the 
trial.  While  it  may  seem  discourteous  not  to  confer 
freely  with  opposing  counsel  about  the  facts  of  the 
case,  especially-  where  an  amicable  adjustment  is 
sought,  counsel  must  never  lose  sight  of  the  fact  that 
negotiations  for  a  compromise  may  fail  and  the  point 
at  issue  be  submitted  to  the  white  heat  of  a  judicial 
inquiry  where  every  admission  on  his  part  will  but 
add  fuel  to  the  flames.  But  probably  it  is  not  so  much 
counsel  as  his  client  who  needs  thus  to  be  cautioned. 
An  attorney  should  insist  strictly  on  his  client  refus- 
ing any  interview  whatever  from  opposing  counsel 


TACT  AND  TACTICS.  203 

or  the  latter 's  client  or  any  of  their  agents.  Too  many 
"good  cases"  have  been  damaged  by  such  interviews 
for  an  advocate  to  disregard  such  tactics  on  the  part 
of  his  opponent. 

The  best  rule  would  be  for  the  client  to  be  in- 
structed to  have  nothing  whatever  to  do  or  to  say 
about  his  case,  and  to  refer  all  inquirers  to  his  coun- 
sel ;  and  for  counsel,  in  as  courteous  manner  as  possi- 
ble, so  as  not  to  give  offense,  to  evade  any  discussion 
whatever  of  the  important  questions  of  fact  involved 
in  the  case.  Some  writers  on  this  subject  have  some- 
times counseled  admissions  in  writing.1 

But  we  do  not  feel  constrained  to  advise  even  the 
indulgence  of  this  liberty  of  counsel  with  his  client's 
cause  of  action.  All  admissions  necessary  or  proper 
on  the  part  of  an  advocate  should  be  made  in  his 
pleadings. 

§  152.  Calculating  the  Value  of  the  Evidence  or  the 
Verdict  of  the  Jury.— Neither  law  nor  human  nature 
is  an  exact  science.  Numerically  calculated,  one  may 
say  of  the  witnesses,  twice  one  are  two;  in  forensic 
arithmetic  twice  one  may  be  none — nay,  may  even  be 
one  against  you.  Nor  is  the  jury  a  body  upon  whom 
one  can  calculate  with  unerring  certainty.  The  advo- 
cate's cause  may  be  just,  but  that  is  no  all-sufficient 
reason  why  they  will  find  so.  Facts  may  lie  so  deeply 

i  Elliott's  Work  of  the  Advocate,  p.  129.  The  author  says:  "Ad- 
mission should  be  sparingly  made  and  only  after  calm  deliberation. 
It  is  unsafe  to  make  them,  no  matter  what  their  character,  other- 
wise than  in  writing.  Experienced  attorneys  strongly  advise  against 
making  any,  except  upon  matters  of  minor  importance,  but  this  ad- 
wice  hardly  goes  far  enough,  for,  even  though  the  matter  has  ap- 
oarently  little  influence  upon  the  merits  of  the  case,  no  admissions 
should  be  made  without  full  consideration;  and  when  made  should, 
if  practicable,  be  written  out  in  full." 


204  AMERICAN     ADVOCACY. 

imbedded  that  the  superincumbent  strata  may  not  in 
any  way  reveal  or  indicate  their  presence  to  the  ordi- 
nary mind.  The  advocate's  business  will  be  to  reach 
them  by  a  chain  of  argument  and  natural  inferences 
to  be  drawn  from  the  evidence  around  him.  If  the 
jury  were  a  machine  into  which  he  coald  thrust  the 
facts  at  one  end  and  take  them  out  in  the  shape  of  a 
verdict  at  the  other,  all  difficulties  would  vanish. 
This,  however,  is  not  the  process  by  which  verdicts 
are  obtained.  The  first  thing  for  the  advocate  is  to 
present  his  evidence  in  a  probable  shape,  the  next  is 
to  get  it  believed,  or  taken  as  believed,  by  the  twelve 
good  men  and  true  in  the  jury-box.  Not  so  easy  a 
matter,  by  any  means,  as  at  first  sight  it  may 
appear. 

§  153.  The  Value  of  the  "Last  Word."— A  great 
deal  has  been  said  about  the  "last  word,"  but  there 
can  be  little  difference  of  opinion  as  to  its  value  with 
a  good  advocate.  It  possesses  a  creative  and  an  anni- 
hilative  force.  It  has  the  field  to  itself,  and  works 
without  opposition.  In  its  course  it  will  sometimes 
uproot  arguments  and  disperse  evidence,  leaving 
nothing  but  ruin  in  its  track;  but  it  may  be  used  to 
give  the  finishing  touches  to  the  opponent's  case.  All 
depends  upon  the  knowledge  of  the  advocate.  In  this 
matter  of  the  reply,  knowledge  is  of  more  value  than 
genius  itself;  knowledge  will  include  both  the  evi- 
dence and  the  best  mode  of  presenting  it.  When  the 
advocate  has  the  "last  word,"  evidence,  arguments, 
theories,  prejudices,  sympathies,  are  at  his  mercy; 
ridicule,  invective,  persuasion,  are  ready  for  his  serv- 
ice. Assuming  things  to  be  pretty  equal,  he  must 
have  studied  advocacy  and  human  nature  to  little  ef- 
fect if  he  does  not  win  the  verdict. 


TACT  AND  TACTICS.  205 

§  154.  Adaptation  and  Arrangement  of  the  Evi- 
dentiary Forces  in  the  Closing  Address.— With  all  the 
advocate's  native  skill  and  ingenuity  it  may  happen 
that  he  has  not  succeeded  with  his  witnesses.  He 
could  not  make  them  intelligent.  The  most  powerful 
imagination  cannot  supply  facts.  The  advocate  may 
find  out  at  last  that  he  has  a  weak  case.  But  what 
then?  Shall  he  despair?  By  no  means,  if  he  have 
learnt  something  of  the  art  he  practices.  A  weak  case 
and  a  strong  advocate  will  often  beat  a  strong  case 
and  a  weak  advocate.  Now  the  strength  of  advocacy 
lies  in  the  adaptation  of  materials  to  the  end  designed. 
If  the  advocate  can  adjust  them  so  that,  as  a  whole, 
they  will  seem  to  be  true,  he  will  win.  The  facts  may 
be  so  arranged  that  they  will  look  larger  than  they 
are,  all  things  being  large  or  small  by  comparison. 
Opposing  facts  may  be  made  to  look  small  by  con- 
trast, or  may  disappear  altogether  by  being  cast  into 
the  shade.  It  may  be  that  the  advocate  has  acquired 
a  mode  of  directness  in  addressing  the  jury;  he  never 
uses  an  argument  that  they  cannot  "rightly  make 
out;"  his  habit  of  "straightforwardness"  fascinates 
them;  he  avoids  all  appearance  of  being  an  ingenious 
twister  of  facts,  knowing  that  such  ingenuity  will  be 
taken  at  the  value  of  the  conjuror's  trick — clever  but 
deceptive;  he  never  mystifies  his  case  by  unintelligi- 
ble language,  but  lets  the  facts  speak  for  themselves; 
—he  uses,  in  short,  plain  words  to  plain  men,  knowing 
that  the  object  of  honest  speech  is  to  be  understood; 
and  that  when  best  understood  he  seems  to  be  most 
honest. 

§  155.  The  Court— Overcoming  the  Preconception 
of  tne  Judge.— This  brings  us  to  the  consideration 
of  another  matter  of  no  small  importance  in  the 


206  AMERICAN    ADVOCACY. 

present  day,  when  the  tendency  appears  to  be  to  su- 
persede the  jury-box  with  the  bench.  Let  not  the 
reader  be  startled  at  the  statement  that  there  is 
greater  prejudice  to  overcome  in  a  judge  than  in  a 
jury.  Although  his  honor  could  never  be  brought  to 
believe  in  such  a  weakness,  he  will  endeavor  to  show 
he  has  no  prejudice,  and  this  effort  is  the  safeguard 
of  the  counsel.  The  prejudices  of  a  jury  are  modified 
by  a  kind  of  mental  attrition;  sometimes  they  even 
neutralize  one  another.  It  is  idle  to  attack  a  preju- 
dice directly.  Prejudice  is  reason-proof;  but  that  is 
no  reason  why,  in  matters  depending  upon  evidence, 
the  advocate  may  not  appeal  successfully  to  the  intel- 
lect. In  doing  so  it  will  not  be  forgotten  that  a 
judge  has  a  high  sense  of  honor,  and  a  desire  to  seem 
impartial.  These  are  the  safeguards  against  the  in- 
firmities which  sometimes  affect  the  noblest  minds 

§  156.  The  Court— Assuming  That  the  Court  Is 
Ignorant  of  the  Law.— It  is  a  very  common  error,  many 
times  a  fatal  one,  on  the  part  of  the  advocate,  to  as- 
sume and  even  say  that  he  "  assumes  that  the  court 
knows  the  law;"  "of  course  the  court  is  familiar  with 
the  law  in  this  case. ' '  He  had  better,  and  he  will  if  he 
is  wise,  assume  that  the  court  is  densely  ignorant  of 
the  law  of  his  case,  and  then  proceed  to  enlighten  the 
court  upon  the  law  of  his  case,  for  if  it  so  be  that  the 
court  does  know  the  law  of  his  case,  all  right,  no  harm 
is  done;  and  if  the  court  does  not,  the  advocate  may 
by  his  fatal  confidence  lose  his  case;  whereas,  if  he 
would  enlighten  the  court  as  he  should,  victory  would 
be  his.  He  has  devoted  weeks,  it  may  be,  to  the  law 
peculiar  to  his  case,  while  to  the  court  it  may  all  be 
new. 


TACT  AND  TACTICS.  207 

§  157.  How  to  Meet  an  Unscrupulous  and  111- 
Natured  Opponent.— If  an  advocate  is  not  the  sub- 
tlest cross-examiner  in  the  world  it  is  not  the  least 
reason  why  he  should  put  a  dangerous  question;  if  he 
is  not  the  greatest  orator  it  is  no  excuse  for  talking 
about  the  wrong  thing,  or  talking  about  nothing.  Woe 
to  the  client  whose  counsel  needlessly  wounds  the 
feelings  of  a  witness!  Even  when  obliged  to  ask  a 
painful  question,  the  jury  will  look  upon  him  with 
dislike;  and,  if  his  manner  do  not  soften  the  act,  they 
will  regard  him  as  a  wanton  vivisector  who  delights 
in  a  painful  operation  and  would  by  no  means  spare 
them  under  similar  circumstances.  But  when  we 
meet  with  an  opponent  who  does  not  spare,  how  shall 
lie  be  dealt  with?  The  answer  is  easy.  Be  severely 
silent.  The  advocate  should  not  retaliate,  or  he  will 
undo  the  good  his  opponent's  unscrupulous  conduct 
has  inflicted.  He  should  leave  himself  in  patient  suf- 
fering to  the  jury,  who  in  due  time  will  reward  his 
forensic  forbearance.  If,  however,  he  think  it  wise 
to  allude  to  it,  he  should  do  so  in  a  manner  that  shall 
evoke  pity  as  well  as  indignation;  but  he  should  be 
careful  not  to  avenge  his  client  by  a  counter  attack  of 
abuse;  he  should  throw  the  blame  at  all  times  upon 
his  opponent. 

§  158.  Under  What  Condition  an  Advocate  Profits 
by  Delay.— We  of  course  do  not  expect  in  this  sec- 
tion to  consider,  to  any  extent,  the  law  applicable  to 
continuances  and  delay.  Nevertheless,  from  the 
standpoint  of  an  advocate  a  delay  or  continuance  is 
often  a  most  important  consideration.  The  main 
reasons  for  delay,  so  far  as  the  advocate  is  concerned, 
are  lack  of  sufficient  preparation  and  the  absence  of 


208  AMERICAN     ADVOCACY. 

important  witnesses.  While  many  books  and  the  ad- 
dresses of  great  lawyers  expatiate  generally  on  the 
ill-favor  with  which  the  request  for  a  delay  or  contin- 
uance is  regarded  both  by  the  court  and  the  profes- 
sion, we  believe  the  subject  has  been  exaggerated  to 
such  an  extent  that  young  lawyers,  at  least,  are  some- 
times constrained  to  permit  themselves  to  be  rushed 
into  a  case  totally  unprepared,  because  of  the  fear  of 
acquiring  a  reputation  for  carelessness  and  coward- 
ice. It  is  of  course  a  very  discreditable  thing  for  a 
lawyer  to  be  always  unprepared  and  to  get  into  the 
habit  of  asking  for  continuances,  merely  because  of 
his  own  slovenliness.  Fabian  tactics  of  that  charac- 
ter will  certainly  be  discountenanced  both  by  the 
courts  and  the  profession.  But  where  by  some  unfore- 
seen circumstance  an  important  witness  cannot  be  at 
the  trial  on  the  day  set,  or  there  is  some  reason  why 
a  trial  on  that  day  would  materially  work  against  the 
interests  of  the  advocate's  client,  he  is  justified  in 
seeking  delay  on  any  legitimate  ground  he  can  press 
forward  as  an  excuse.1  Some  opportunity  is  gener- 
ally afforded  in  the  progress  of  any  case  to  find  some 
good  reason  on  which  to  base  a  motion  for  a  contin- 
uance. However,  to  be  prepared  to  take  effective 
advantage  of  every  opportunity  of  this  character  the 
advocate  must  have  the  statutes  and  decisions  of  his 


i  "Caution  is  as  important  as  courage.  It  is  only  the  foolhardy, 
not  the  wise,  who  assume  the  hazard  of  trying  a  cause  without  am- 
ple time  for  preparation,  or  who  risk  a  trial  where  important  evi- 
dence that  delay  may  secure  is  absent.  Prudence  requires  that 
no  risks  be  assumed  where  diligence  and  care  can  avoid  them. 
Where  there  is  a  risk  that  a  postponement  will  avoid,  and  there  is 
reason  for  a  postponement,  then  it  is  the  part  of  wisdom  and  pru- 
dence to  apply  for  a  continuance."  Elliott's  Work  of  the  Advocate, 
p.  156. 


TACT  AND  TACTICS.  200 

own  state,  and,  to  some  extent  of  other  states  on 
this  question  and  other  questions  of  practice  closely 
related  to  it,  at  his  fingers'  ends.  If,  however,  as 
might  be  the  case,  no  opportunity  for  delay  is  af- 
forded, the  advocate  must  seek  the  indulgence  of  the 
opposing  counsel.  The  frequency  with  which  cases 
are  continued  by  consent  in  all  our  nisi  prius  courts 
is  evidence  of  the  magnanimous  spirit  and  free-ma- 
sonry prevailing  among  the  members  of  the  American 
bar;  indeed  with  a  reputable  opponent  no  advocate 
need  fear  to  meet  with  any  denial  to  his  first  request 
for  a  continuance  or  for  any  other  reasonable 
courtesy. 

In  criminal  procedure  the  defense  sometimes  de- 
sires a  delay  not  only  for  the  reasons  already  stated 
but  for  the  additional  reason  that  sometimes  it  is  well 
to  avoid  a  trial  at  a  time  too  near  the  date  of  the  com- 
mission of  the  alleged  offense.  Public  opinion  is  some- 
times so  strong  that  an  impartial  jury  of  the  vicinage 
would  be  a  practical  impossibility.  A  few  months' 
delay  will  sometimes  cool  the  intense  anger  of  the 
populace  and  insure  a  fairer  trial. 

§  159.  Danger  in  Wandering  from  the  Main  Point 
—One  of  the  most  universal  tendencies  of  the  human 
mind  is  to  wander  from  the  original  thought  which  it 
may  have  started  with  at  a  given  time,  into  by-paths 
which  branch  off  from  it  at  many  and  frequent  inter- 
vals. This  besetting  sin  of  the  human  mind  may  some- 
times lead  the  advocate,  either  in  the  presentation  of 
his  evidence  or  in  his  address  to  the  court  or  jury,  to 
wander  from  the  main  point  at  issue  and  not  only 
confuse  the  minds  of  those  addressed  but  at  the  same 
time  dissipate  the  energies  of  the  advocate  which 
might  have  been  more  profitably  employed  in  batter- 

14 


210  AMERICAN     ADVOCACY. 

ing  away  persistently  at  the  main  stronghold  of  the 
enemy.  Of  course  the  opposing  counsel  will  attempt 
to  entice  the  advocate  for  the  other  side  to  waste  his 
energies  on  issues  of  minor  importance  by  challeng- 
ing him  to  the  conflict  by  boastful  allegations  and 
sarcastic  insinuation.  Let  the  advocate  beware  how 
he  meet  these  insidious  advances  of  the  enemy.  As 
a  general  rule  it  is  best  to  ignore  all  irrelevant  issues 
and  to  hold  the  mind  of  the  jury  to  the  main  point  at 
issue.  If  controversy  is  joined  by  counsel  over  points 
of  minor  importance  the  minds  of  the  jury  are  di- 
verted and  the  value  of  the  main  point  unappreciated 
amid  the  resulting  confusion.  Hon.  J.  W.  Donovan 
has  well  expressed  the  idea  in  succinct  language,  when 
he  said :  * '  The  real  winner,  after  all,  is  one  who,  with 
singleness  of  purpose,  holds  to  his  point,  and  hugs 
the  issue  to  the  end."1 


i  Donovan's  Modern  Jury  Trials,  page  213.  In  the  connection  in 
which  this  statement  is  made  by  Mr.  Donovan,  the  latter  illustrates 
It  by  relating  the  excellent  and  celebrated  story  entitled,  "Kill  the 
Squirrel,"  which  appeared  some  time  ago  in  Harper's  Weekly  and 
which  furnishes  a  profitable  lesson  to  the  law  student.  The  story 
relates  the  experience  of  a  lawyer  in  selecting  a  clerk.  The  lawyer 
put  a  notice  in  an  evening  paper  saying  he  would  pay  a  small  stipend 
to  an  active  office  clerk;  next  morning  his  office  was  crowded  with 
applicants— all  bright  and  many  suitable.  He  had  them  wait  in 
a  room  till  all  should  arrive,  and  then  arranged  them  in  a  row 
and  said  he  would  tell  a  story  and  note  comments  of  the  boys,  and 
Judge  from  that  whom  he  would  engage. 

"A  certain  farmer,"  began  the  lawyer,  "was  troubled  with  a  red 
squirrel  that  got  in  through  a  hole  in  his  barn  and  stole  his  seed 
corn;  he  resolved  to  kill  that  squirrel  at  the  first  opportunity.  See- 
ing him  go  in  at  the  hole  one  noon  he  took  his  shotgun  and  fired 
away;  the  first  shot  set  the  barn  on  fire." 

"Did  the  barn  burn?"  said  one  of  the  boys. 

The  lawyer,  without  answer,  continued:  "And  seeing  the  barn 
on  fire  the  farmer  seized  a  pail  of  water  and  ran  in  to  put  it  out." 


TACT  AND  TACTICS.  211 

"Did  he  put  it  out?"  said  another." 

As  he  passed  inside  the  door  shut  to,  and  the  barn  was  soon 
in  full  flames.  Then  the  hired  girl  rushed  out  with  more  water — " 

"Did  the  hired  girl  burn,  too?"  said  another  boy. 

The  lawyer  went  on  without  answer — "Then  the  old  lady  came 
out,  and  all  was  noise  and  confusion,  and  everybody  was  trying  to 
put  out  the  fire." 

"Did  they  all  burn  up?"  said  another. 

The  lawyer,  hardly  able  to  restrain  his  laughter,  said:  "There, 
there,  that  will  do;  you  have  all  shown  great  interest  in  the  story;" 
but,  observing  a  little  bright-eyed  fellow  in  deep  silence  he  said: 
"Now,  my  little  man,  what  have  you  to  say?" 

The  little  fellow  blushed,  grew  uneasy  and  stammered  out:  "/ 
want  to  know  what  became  of  that  squirrel,  that's  what  I  want  to 
know." 

"You  will  do,"  said  the  lawyer.  "You  are  my  man;  you  have  not 
been  switched  off  by  a  confusion  and  a  barn's  burning  and  hired 
girls  and  water  pails;  you  have  kept  your  eye  on  the  squirrel." 

As  Mr.  Donovan  suggests  a  whole  chapter  is  given  in  this  story. 
It  is  packed  full  of  excellent  advice  to  beginners  with  a  few  good 
hints  to  older  advocates.  In  every  suit  there  is,  or  should  be,  one 
squirrel  to  kill,  and  no  mire. 


CHAPTER  XIV. 


BRIEFS,  ARGUMENTS  AND  METHODS  OF  SPEAKING. 


§160.  The     Lawyer's     Brief — Its 
Requisites  and  Value. 

161.  Addressing  the  Court — Re- 

quisites and  Value  of 
Oral  Argument. 

162.  Addressing     the      Court- 

Discussion  of  Principle 
versus  the  Citation  of 
Authority. 

163.  Addressing  the   Court— In- 

terruptions by  the 
Court. 

164.  Addressing      the      Jury — 

General   Considerations. 

165.  Addressing     the     Jury — A 

Temperate  Style  Before 
a  Jury. 

166.  Addressing      the      Jury — 

Winning  the  Master 
Mind  of  the  'Jury. 

167.  Addressing      the      Jury — 

"Oratory1  Before  a 
Jury. 

168.  Forensic    Eloquence  —  Its 

Value  and   Requisites. 


§169.  Forensic  Eloquence  — •  Ge- 
nius or  Hard  Work  as 
a  Requisite. 

170.  Forensic          Eloquence   - 

Mental   Absorption   and 
Concentration. 

171.  Forensic  Eloquence  —  The 

Value  of  a  Personal  In- 
quisition. 

172.  Forensic     Eloquence — How 

to  Meet  an  Attack. 

173.  Forensic      Eloquence — Dis- 

cussion of  Adverse  Au- 
thorities. 

174.  Forensic  Eloquence  —  Or- 

der,   Arrangement    and 
Peroration. 

175.  Elocution — Cultivation     of 

the  Powers  of  Speech. 

176.  Elocution — Imitation     and 

Affectations   of   Speech. 

177.  Danger     of     Achieving     a 

Reputation  as   a  Wit. 

178.  Appropriate   Physical    Ges- 

tures    and     Facial    Ex- 
pressions   in    Speaking. 


§  160.  The  Lawyer's  Brief— Its  Requisites  and 
Value.— A  very  important  part  of  a  lawyer's  work  is 
the  preparation  and  submission  of  briefs  for  botfr 
nisi  prius  and  appellate  tribunals.  The  former,  how- 


METHODS  OF  SPEAKING.  213 

ever,  are  hardly  more  than  memoranda  of  authorities ; 
the  latter  present  the  entire  case  to  the  appellate 
tribunal  and  the  advocate  fails  or  succeeds  there 
wholly  on  the  weakness  or  efficacy  of  his  printed  brief. 
Nothing  is  more  important  therefore  than  a  perfect 
brief. 

The  different  parts  of  a  brief  vary  in  some  partic- 
ulars in  the  different  states.  The  statutes  and  the 
rules  of  court  must  always  be  carefully  consulted. 
Most  usually,  however,  the  different  parts  of  the 
brief  are  as  follows:  First,  abstract  of  the  record; 
second,  statement  of  the  case;  third,  assignment  of 
errors;  fourth,  points  and  authorities;  fifth,  argu- 
ment; sixth,  index.  The  order  of  the  various  parts 
may  be  changed,  but  the  order  here  given  is  univer- 
sally recognized  as  the  most  perfect  and  logical. 

The  abstract  of  the  record  should  be  full,  but  not 
verbose;  accurate,  but  clear.  Clearness  and  brevity 
are  the  two  most  necessary  qualities.  The  purpose 
of  the  abstract  is  to  make  the  important  evidence 
easily  accessible  to  the  court.  It  is  therefore  always 
advisable  to  have  the  abstract  sub-headed  throughout, 
showing  at  a  glance  where  the  testimony  of  one  wit- 
ness ends  and  another  begins;  and  every  other  re- 
source of  printer's  ink  and  of  wise  arrangement 
should  be  taken  advantage  of  to  make  the  abstract 
attractive  to  the  court — something  it  very  seldom  is. 
Such  an  abstract  will  invite  the  attention  of  the  court 
where  a  voluminous,  unintelligible  and  slovenly 
printed  one  will  repel  an  investigation  even  on  the 
part  of  a  most  painstaking  and  conscientious  judge. 

The  statement  of  facts  in  a  lawyer's  brief  ought 
to  test  the  strength  of  his  case.  In  the  facts  lies  the 
justice  of  the  cause.  The  best  case  can  be  so  ob- 


214  AMERICAN     ADVOCACY. 

scurely  stated  as  to  conceal  its  merits ;  and  the  weak- 
est can  be  so  plausibly  stated  as  to  make  a  first  good 
impression.  A  famous  writer  says  that  every  cause 
has  a  bad  side ;  and  it  may  be  affirmed  that  the  worst 
of  causes  has  at  least  one  good  side.  The  art  is  to 
make  the  best  of  your  case.1 

The  assignment  of  errors  is  simply  a  copy  of  the 
points  submitted  as  grounds  for  the  motion  for  a  new 
trial.  The  points  and  authorities  is  a  short  digest  of 
the  law  of  the  case,  citing  all  the  authorities  sustain- 
ing the  various  points  of  law  on  which  you  desire  to 
insist  in  the  argument.  Here  the  statements  of  the 
legal  propositions  should  be  short  and  succinct  and 
so  carefully  worded  as  to  evidence  at  once  a  direct 
connection  and  bearing  upon  the  facts  of  the  particu- 
lar case.  In  the  written  argument  insistence  should 
be  laid  upon  the  most  important  points,  which  again 
should  be  arranged  in  the  order  of  their  force  and 
conclusiveness  on  the  advocate's  case,  the  most  im- 
portant point  of  all  coming  last.  The  index  also  is 

i  "An  eminent  member  of  the  bar,"  said  Judge  Daly,  of  New 
York,  "told  me  that  from  the  beginning  of  his  practice  he  had 
made  this  part  of  his  brief  a  special  study,  when  presenting  a 
case  to  an  appellate  tribunal  or  to  a  single  judge;  and  that  the 
first  compliment  he  received  from  the  court  was  for  his  statement 
of  the  facts  of  a  most  complicated  case.  He  had  devoted  great 
care  to  arranging  the  array  of  particulars  so  as  to  make  the  com- 
prehension of  the  facts  as  easy  as  possible,  and  he  was  told  that 
it  was  mainly  his  statement  of  the  facts  that  won  the  case,  a 
compliment  that  gave  intense  satisfaction  to  a  young  practitioner. 
It  was  this  gentleman's  belief  that  success  in  appeal  cases  largely 
depended  on  a  clear  statement  of  fact  in  the  brief.  It  is  undenia- 
ble that  if  such  a  statement  is  lucid  and  convincing  and  impresses 
the  court  with  the  justice  of  your  cause  your  argument  on  the  law 
will  be  greatly  aided.  In  a  case  doubtful  or  novel  as  to  the  legal 
questions  involved,  doubt  is  certain  to  be  resolved  on  the  side  of 
substantial  justice." 


METHODS  OF  SPEAKING.  215 

not  to  be  slighted,  as  it  too  often  is.  The  advocate 
must  remember  that  the  judges  are  men  and  will  al- 
ways take  the  path  of  the  least  resistance  in  arriving 
at  a  decision.  He  should  be  careful,  therefore,  that 
his  opponent's  brief,  by  its  clear  and  logical  arrange- 
ment and  its  complete  and  exhaustive  index,  does  not 
offer  a  more  accessible  avenue  to  a  knowledge  of  the 
case  than  his  own  brief. 

Before  passing  to  the  last  requisite  of  a  good  brief, 
we  desire  to  reiterate  the  emphasis  we  have  already 
placed  upon  the  general  characteristics  of  an  ideal 
brief,  i.  e.,  clearness  and  brevity.  It  is,  indeed,  a 
pleasure  for  a  court  to  take  up  a  brief  and  find  every- 
thing in  such  shape  that  they  are  enabled  to  gain  a 
complete  idea  of  the  whole  case  by  simply  glancing 
through  its  pages  and  find  the  statements  therein 
contained  so  clear  that  a  second  reading  is  never  nec- 
essary. And  brevity  is  even  more  important,  A 
glance  through  the  decided  cases  will  show  how  often 
courts  have  condemned  the  practice  of  submitting 
voluminous  briefs,  and  in  some  cases  have  stricken 
them  from  the  files.  There  is  absolutely  no  occasion 
for  a  brief  to  exceed  one  hundred  pages.  We  make 
this  statement  advisedly  after  consulting  more  than 
five  hundred  briefs  filed  in  our  state  and  federal 
courts.  In  most  instances  they  need  not  exceed  fifty 
pages.  If  the  abstract  of  the  evidence  is  necessarily 
large  by  reason  of  some  rule  of  court  requiring  all 
evidence  to  be  set  out  in  detail  or  under  some  statutes 
permitting  what  is  called  the  "short  form"  of  ap- 
peal, that  is,  without  filing  a  transcript,  the  ab- 
stract should  be  published  separately  and  carefully 
sub-divided,  sub-headed  and  indexed. 

With  respect  to  the  compositions  of    briefs    and 


216  AMERICAN     ADVOCACY. 

points  submitted  to  the  court,  so  far  as  literary  style 
is  concerned,  and  whether  any  impression  is  made 
by  care  in  that  respect,  it  may  be  inferred  that  the 
substance,  rather  than  the  form,  of  a  brief  is  the 
thing  considered  by  a  judge.  This  is  not  necessarily 
because  of  the  great  pressure  of  business  and  the 
little  time  left  for  dwelling  upon  matters  of  mere 
style,  for  it  is  the  duty  as  well  as  the  inclination  of  a 
judge  to  look  at  the  counsel's  law  and  not  at  the  man- 
ner in  which  he  states  it;  yet  it  must  be  evident  that 
form  of  expression  can  add  much  to  the  force  and  im- 
pressiveness  of  a  statement.  The  opinion  of  learned 
judges  often  shows  this.  One  is  particularly  happy 
in  his  choice  of  words;  and  another,  less  so.1 

§  161.  Addressing  the  Court— Requisites  and  Value 
of  Oral  Argument.— Whether  a  court  can  be  influenced 
more  by  clear,  original  argument  than  by  the  mere 
citation  of  authority,  we  do  not  believe  to  be  at  all 
doubtful.  All  courts,  the  members  of  which  lay  any 
claim  to  legal  ability,  favor  an  oral  argument  of 
counsel  in  preference  to  the  dry  citation  of  authority 
in  printed  briefs.2 


1  "A  strong  opinion,"  says  Judge  Daly,  to  quote  again  from  an 
address  delivered  by  this  learned  judge,   "is  one   containing  law 
and   reason,   plainly   stated   in  the   most   forcible   way;    while   an 
equally  sound  utterance  may  be  weak,  because  lamely  and  insuffi- 
ciently delivered.    It  is  not,  however,  to  be  dented  that  a  lawyer's 
training  for  his  profession  is  not  complete  until  he  has  so  mas- 
tered the  form  of  expression  as  to  present  his  statements  with  di- 
rectness, nor  until  he  has  acquired  a  vocabulary  extensive  enough 
to  give  every  shade  of  meaning  and  the  art  to  use  it  for  substan- 
tial ends  and  to  the  best  effect." 

2  Mr.  Justice  Harlan,  of  the  United  States  Supreme  Court,  has 
this  to  say:     "It  is  a  matter  of  serious  regret  and  concern  that  the 
practice  of  oral  argument  appears  to  be  falling  into  disuse.     The 


METHODS  OF  SPEAKING.  217 

It  is  of  great  advantage  to  the  court  itself.  The 
opportunity  to  interrogate  counsel  frequently  leads 
to  a  better  understanding  of  the  nature  of  the  cause, 
and  clears  up  many  doubts.  The  English  reports 
show  that  even  in  the  House  of  Lords  the  argument 
of  causes  frequently  assumes  the  character  of  a  run- 
ning oral  debate  between  court  and  counsel.  In  this 
way  a  great  many  specious  shams  are  pricked  and 
exploded;  the  judges  arrive  at  a  better  understand- 
ing of  the  cause,  and  counsel  are  maintained  in  habits 
of  honesty,  which  they  are  liable  to  fall  from  under 
the  dark  lantern  system  of  "submitting"  causes  on 
briefs;  briefs  which  are  sometimes  concocted  in  a 
spirit  of  deceit  and  falsehood  and  which  are  very 
often  unintelligible.  We  find,  therefore,  that  the  pe- 
culiar value  of  oral  argument  lies  in  the  fact  that  the 
court  and  counsel  are  able  to  pick  to  pieces  the  au- 
thorities and  probe  the  reasons  of  the  law  as  applica- 
ble to  that  particular  case.  But  it  is  in  such  cases 
that  an  attorney  may  well  quail  before  the  quizzing 
of  the  court  where  he  has  no  more  intimate  acquaint- 
ance with  the  law  of  his  case  outside  of  the  decided 
cases. 

In  the  preparation  of  points  for  the  court,  certain 
rules  may  be  observed:  The  first  rule  is  that  the 
printed  or  written  brief  is  to  be  submitted  after  the 

idea  seems  to  have  become  general  among  members  of  the  bar  that 
we  prefer  arguments  presented  in  the  form  of  written  briefs.  Such 
is  not  the  case.  There  are  many  times  when  nothing  can  take 
the  place  of  the  personal  presentation.  Briefs  are  well  enough  in 
their  way,  but  it  very  often  happens  that  the  real  point  upon  which 
a  case  turns  may  be  overlooked  in  a  brief,  while  an  oral  argument 
may  serve  to  bring  it  home  to  the  court.  A  special  emphasis,  a 
striking  simile,  may  throw  new  light  on  an  intricate  problem,  and 
perhaps  reverse  a  judgment  in  the  mind  of  the  court." 


218  AMERICAN     ADVOCACY. 

hearing,  and  should,  therefore,  be  an  amplification 
of  the  oral  argument.  The  latter  should  be  condensed 
as  much  as  possible,  the  former  may  be  as  full  as  the 
advocate  pleases.  The  oral  argument  should  not  deal 
with  details  nor  too  many  particulars.  These  should 
be  found  in  the  brief  if  the  court  cares  to  look  for 
them.  The  second  rule  is,  if  there  are  many  points 
to  be  submitted,  that  the  chief  ones  only  should  be  se- 
lected for  oral  presentation.  The  advocate  should 
spread  the  others  on  the  points,  but  himself — if  the 
colloquialism  is  permissible — on  one  or  two  of  the 
best.  The  third  rule  is  for  the  advocate  to  cultivate 
an  intimate  acquaintance  with  the  elementary  legal 
principles  underlying  his  case  so  that  he  may  make 
the  reason  for  a  decision  of  the  particular  case  in  his 
favor,  so  evident  that  he  compels  an  instant  accept- 
ance of  his  position  by  every  member  of  the  court. 
Only  one  thing  should  be  left  for  the  court  to  do  after 
the  advocate  has  finished — the  work  of  finding  author- 
ities to  sustain  the  preconceptions  which  the  advo- 
cate has  already  aroused. 

§  162.  Addressing  the  Court— Discussion  of  Prin- 
ciple versus  the  Citation  of  Authority.— A  lawyer's 
address  should  not  be,  as  it  too  often  is,  a  mere  digest 
of  the  authorities  on  the  point  of  law  involved  in  the 
particular  case.  A  clear  and  thorough  discussion  of 
the  legal  principle  underlying  the  decided  case  is  un- 
doubtedly of  greater  value.  True,  the  tendency  of 
American  lawyers,  at  least,  is  to  dispense  with  any 
original  research  into  the  principles  of  the  law  appli- 
cable to  the  particular  state  of  facts  and  to  rely  too 
strongly  on  the  authoritative  utterances  of  other 
tribunals.  It  may  be  that  the  press  of  litigation  at 
the  present  time  offers  very  little  time  even  where 


METHODS  OF  SPEAKING.  219 

there  is  the  inclination  to  reach  independent  conclu- 
sions by  original  methods  of  reasoning  and  research. 
And  undoubtedly,  also,  the  courts  lend  some  encour- 
agement to  the  practice.  It  certainly  seems,  some- 
times, that  all  an  attorney  is  expected  to  do  on  a  ques- 
tion of  law  before  the  court  is  to  cite  a  few  cases  ap- 
parently on  all  fours  with  his  own  and  demand  a  de- 
cision, and  where  the  authorities  seem  to  be  over- 
whelmingly in  favor  of  a  certain  proposition  the 
court  is  not  even  expected  to  reason  about  it.1 

But  a  court  is  not  always  unwilling  on  a  difficult  or 
novel  point  to  altogether  disregard  the  authorities 
and  consider  the  question  as  res  nova.2  Under  such 
circumstances  a  court  is  not  made  to  feel  that  it  is 
being  bluffed,  coerced  or  crushed  by  any  "weight  of 

1  Mr.  Bishop  says  that  there  are  enough  of  these  questions  on 
which  the  authorities  seem  to  be  uniform,  but  which  are  decided 
incorrectly    on  principle,    and    in    regard    to    which  anxious    and 
eager  litigants  have  been  discouraged  by  "big"  lawyers,  to  keep  in 
comfortable  circumstances  many  of  the  younger  generation  in  the 
profession  who  sometimes  find  the  struggle  for  existence  too  in- 
tensely engaging. 

2  One  of  the  justices  of  the  New  York  Supreme  Court  is  reported 
as  giving  voice  to  the  following  striking  sentiments  quite  pertinent 
to  this  question:     "I  have  not  deemed  it  necessary  to  cite  authori- 
ties in  support  of  the  views  which  I  have  expressed.    It  Is  enough 
that   they   must   commend   themselves   to   the   rational   mind.      It 
seems  to  be  considered  in  some  quarters  that  judges  should  not 
think  any  more  on  their  own  account;  that  they  should  spend  their 
lives  mousing  through   mouldy  libraries  in  search  of  what  other 
judges  in  a  less  enlightened  age  have  said,  not  even  upon  the  im- 
mediate question  in  hand,  but  upon  some  matter  more  or  less  dis- 
tantly related.     It  is  thought  to  be  presumption  to  let  one's  own 
bucket  down  into  the  living  well  of  reason,  instead  of  being  con- 
tent  to  lick  up   from   the   muddy,   trampled   earth   around   it   the 
green  and  stagnant  leakings  of  the  past.     And  so  the  science  of 
law,  which  was  once  deemed  the  perfection  of  human  reason,  is 
being  left  behind  by  every  other  science." 


220  AMERICAN     ADVOCACY. 

authority"  into  making  its  decision,  but  on  the  con- 
trary feels  an  added  dignity  when  counsel  approach 
them  as  the  equal  of  any  other  court,  and,  by  in- 
dulging the  presumption  that  the  case  under  review 
is  res  nova,  request  a  decision  on  reason  and  princi- 
ple, rather  than  demand  it  on  authority.  Indeed,  it 
is  not  an  extremely  rare  occurrence  for  an  attorney 
appearing  before  a  court  almost  bankrupt  as  to 
authorities,  and  thus  compelled  to  rely  altogether  on 
reason  and  principle  to  win  his  case  over  his  appar- 
ently more  fortunate  opponent,  who  had  satisfied 
himself  with  nothing  more  than  the  preponderance 
of  authority.  Of  course,  we  do  not  mean  to  convey 
by  this  that  in  every  case  where  the  authorities  pre- 
ponderate reason  and  principle  would  dictate  an 
opposite  conclusion — on  the  contrary,  they  will  gen- 
erally be  found  together;  but,  since  it  is  human  to 
err,  there  will  be  found  instances,  not  a  few,  in  which 
principle  and  reason  have  been  lost  in  confusion  or 
prejudice.  Out  of  the  latter  and  back  to  the  former 
the  diligent  attorney  may  lead  the  court  by  a  clear 
conception  and  forcible  statement  of  what  the  true 
rule  ought  to  be.  In  such  cases  the  unprejudiced 
mind  of  the  court  is  always  ready  to  follow. 

§  163.  Addressing  the  Court— Interruptions  by  the 
Court.— Where  an  attorney  addresses  an  appellate 
tribunal  he  must  remember  that  he  is  addressing 
minds  trained  to  piece  at  once  to  the  heart  of  the  case 
and  impatient  to  reach  the  point  decisive  of  the  dis- 
pute. One-half  the  cases  of  interruption  and  antici- 
pation of  arguments  by  the  court  are  due  to  too  much 
circumlocution  and  preparation  of  counsel  in  ap- 
proaching the  point  of  the  case.  Judges  are  not  pecu- 
liar in  this  respect.  The  advocate  would  not  expect 


METHODS  OF  SPEAKING.  221 

a  business  man,  upon  whom  he  called  with  a  proposi- 
tion in  favor  of  which  he  hoped  to  impress  him,  to 
listen  to  his  way  of  unfolding  it,  if  he  thought  of  a 
more  direct  way  of  getting  at  what  he  wished  to 
know  and  put  at  once  his  pointed  questions  to  that 
end.  He  would,  on  the  contrary,  be  glad  to  advance 
his  statements  in  the  direction  in  which  the  inquirer's 
mind  opened  to  receive  it.  And  he  would  feel  that 
after  he  had  satisfied  him  by  a  full  discussion  on  the 
points  that  first  occurred  to  him,  leaving  him  to  weigh 
his  arguments  at  leisure  he  could  safely  and  profita- 
bly urge  every  minor  reason  in  aid  of  them,  confi- 
dent of  an  indulgent  auditor.  There  is  every  reason, 
therefore,  for  the  young  practitioner  not  to  feel  dis- 
concerted at  interruptions  by  way  of  inquiries  from 
the  bench.  They  serve  to  show  where  the  strain  of  the 
case  comes  and  where  his  greatest  exertion  must  be 
made. 

§  164.  Addressing  the  Jury— General  Considera- 
tions.—Turning  to  the  consideration  of  the  best 
method  of  presenting  a  case  to  a  jury,  it  must  be  ap- 
parent at  once  that  a  different  rule  is  to  be  observed 
from  that  which  applies  in  arguing  a  point  before  a 
court.  There  is  a  much  greater  latitude  of  observa- 
tion in  discussing  a  question  of  fact  than  of  law,  and 
a  different  method  must  be  pursued  in  convincing 
minds  not  always  trained  to  reason  closely  upon  any 
subject  nor  capable  of  close  attention.1 

i  Dr.  Johnson's  advice  to  counsel,  arguing  before  a  legislative 
committee,  might  be  urged  with  respect  to  addressing  a  jury:  "You 
must  not  argue  there  as  if  you  were  arguing  in  the  schools;  close 
reasoning  will  not  fix  their  attention;  you  must  say  the  same  thing 
over  and  over  again  in  different  words.  If  you  say  it  but  once, 
they  miss  it  in  a  moment  of  inattention.  It  is  unjust  to  censure 


222  AMERICAN     ADVOCACY. 

Here  is  the  marked  difference  in  addressing  a 
court  and  in  addressing  a  jury.  With  the  former 
the  advocate  begins  with  his  strongest  point  because 
the  judge,  with  his  training  and  experience,  sees  the 
point  of  the  case  at  once  and  his  mind  refuses  to  be 
diverted  until  the  point  is  fully  discussed.  But  the 
juryman  is  desirous  of  taking  the  case  as  the  advo- 
cate presents  it.  He  soon  loses  interest  in  it  if  the 
latter  does  not  begin  in  a  manner  to  attract  his  at- 
tention and  continue  with  matter  both  direct  and  per- 
tinent. The  advocate  has,  therefore,  to  gain  his  at- 
tention; but,  in  order  to  make  the  most  lasting  im- 
pression he  should  begin  with  considerations  of  lesser 
weight,  increasing  the  strength  of  his  arguments  as 
he  goes  on,  and  reserving  his  most  convincing  for 
the  close.  This  is  and  always  has  been  the  art  of 
oratory.  It  is  the  dramatic  method  by  which  all  ora- 
torical effects  are  achieved.  The  interest  of  the 
hearer  is  excited,  and  the  chief  point  is  made  when 
his  attention  is  riveted  upon  the  subject.  It  is  not 
ineffective  to  begin  with  a  rather  weak  argument.  If 
the  advocate  perceive  that  his  auditor  sees  the 
weakness  or  the  fallacy  of  it,  he  has  gained  his  point 
in  securing  his  attention  and  he  is  ready  to  appreciate 
the  better  considerations  he  is  next  to  urge. 

It  is  sometimes  necessary  to  address  jurors  that 
are  not  only  inattentive  but  also  hostile.  How,  with- 

lawyers  for  multiplying  words  when  they  argue;  it  is  often  neces- 
sary for  them  to  multiply  words."  Referring  on  another  occasion 
to  the  course  which  counsel  should  pursue  in  arguing  at  the  bar  of 
the  House  of  Commons,  Johnson  said:  "You  must  provide  yourself 
with  a  good  deal  of  extraneous  matter  which  you  are  to  produce 
occasionally  so  as  to  fill  up  the  time;  for  you  must  consider  that 
they  do  not  listen  much.  If  you  begin  with  the  strength  of  your 
cause,  it  may  be  lost  before  they  begin  to  listen.  When  you  catch 
a  moment  of  attention  press  the  merits  of  the  question  upon  them." 


METHODS  OF  SPEAKING.  223 

in  the  limits  of  an  ordinary  summing  up,  to  convert 
such  auditors  is  the  problem  for  the  jury  lawyer.1 

§  165.  Addressing  the  Jury— A  Temperate  Style  Be- 
fore a  Jury.— A  temperate  style  is  always  more 'ef- 
fective than  a  noisy  one.  A  verdict  is  never  ob- 

i  "I  recall  with  admiration,"  says  Judge  Daly,  "the  manner  in 
which  this  was  done  in  a  trial  I  witnessed.  The  case  was  for 
rent  upon  the  lease  for  one  year  of  a  suburban  cottage,  and  the 
defense  was  fraudulent  representations  that  the  locality  was  health- 
ful, whereas  it  was  a  chills  and  fever  district,  and  the  tenant, 
having  relied  on  the  representations  and  signed  the  lease,  went 
Into  possession,  and  the  whole  family,  domestics  included,  having 
enjoyed  sitting  out  in  the  moonlight  for  some  weeks,  were  all  laid 
up  with  malaria.  The  landlord  denied  the  representations,  but 
his  claim  of  four  hundred  dollars  for  his  year's  rent  seemed  in 
great  peril  after  the  tenant  and  his  witnesses  had  finished  their 
tale  of  woe,  for  the  twelve  jurymen,  and  one  sympathetic  juryman 
in  particular,  regarded  the  landlord  and  his  witnesses  with  evident 
distrust.  The  case  went  to  the  jury  upon  the  issue  whether  or 
not  such  representations  had  been  made.  It  was  oath  against  oath, 
and  the  lessor's  counsel  had  nothing  to  suggest  but  the  improba- 
bility that  any  business  man  would  make  such  representations  and 
risk  his  whole  rent  upon  the  result.  I  shall  never  forget  the  in- 
genious manner  in  which  the  counsel  opened  his  case.  It  was  a 
discouraging  thing  to  rise  and  face  the  lowering  regards  of  eleven 
jurymen.  I  say  eleven,  because  the  twelfth  juryman,  the  sympa- 
thetic one,  declined  to  look  at  him  at  all,  and  deliberately  turned 
in  his  seat  so  as  to  present  his  back  to  the  counsel  as  he  got  up  to 
plead  the  cause  of  the  hated  landlord.  He  was  like  the  member  on 
the  committee,  he  had  made  up  his  mind.  The  counsel  rose  with 
the  written  lease  in  his  hand,  which  he  slowly  unfolded  and  held 
out  to  the  jury.  'Gentlemen,'  he  said,  'look  at  this  paper.  What 
would  you  call  it?  As  plain  business  men  you  would  frankly  an- 
swer that  it  is  a  lease.  Oh,  no,  gentlemen,  it  is  quite  a  different 
instrument  if  the  defendant  prevails  here,  for  accoTding  to  him  it 
is  a  policy  of  insurance  by  which  my  client  for  the  sum  of  four 
hundred  dollars  guarantees  the  tenant  and  his  wife,  and  his  chil- 
dren and  his  servants  against  any  kind  of  sickness  for  a  whole 
year,  and  gives  him  in  addition  a  house  to  live  in!'  The  twelfth 
juror  was  so  impressed  with  the  novelty  of  this  view  that  he 
turned  round  to  hear  more.  He  came  round  in  fact  figuratively 
and  actually,  and  the  landlord  got  a  verdict." 


224  AMERICAN     ADVOCACY. 

tained  by  noise;  foam  has  no  weight,  fury  of  lan- 
guage no  force.  Still,  it  is  not  intended  for  a  mo- 
ment to  suggest  -that  a  conversational  style  is 
powerful;  on  the  contrary,  an  advocate  might  as 
well  attempt  to  fire  a  bed  of  growing  rushes  with  a 
piece  of  tinder  as  rouse  a  jury  with  a  feeble  speech, 
Bad  speaking  is  infinitely  worse  than  silence.  Let 
the  facts  speak  at  all  events.  But  a  roaring  style 
never  persuades;  it  only  astounds  if  it  does  not  stun. 
Juries  generally  endeavor  to  do  what  they  believe  to 
be  right,  and  to  decide  justly;  but  the  danger  of  this 
excellent  quality  is,  that  their  desire  to  do  what  is 
just  often  leads  them  to  an  unjust  conclusion.  They 
set  up,  as  they  think,  a  kind  of  natural  justice  amongst 
themselves,  as  though  they  should  have  a  common 
standard  of  height  for  all  mankind,  which  would  pro- 
duce, undoubtedly,  much  painful  stretching,  or  undue 
stooping,  if  all  were  forced  to  meet  it. 

This  natural  justice,  unfortunately,  is  neither  law 
nor  equity,  and  generally  inflicts  injury  on  both 
parties  to  the  action,  as  the  boys  did  who  divided  the 
bellows  that  each  might  have  a  share.  The  advocate 
who  knows  that  his  client's  rights  are  inconsistent 
with  this  natural  theory  must  convince  the  jury  of 
their  error  and  bring  them  to  a  more  accurate  per- 
ception of  the  merits  of  the  conflicting  claims.  This 
is  not  to  be  accomplished  by  declamation,  but  by  the 
exercise  of  the  reasoning  faculties.  The  advocate 
must  clear  away  not  only  the  theory  which  they  have 
constructed,  but  the  basis  on  which  it  rests.  Here  is 
work  for — first,  his  perceptive  faculties  and  then,  his 
argumentative.  And  beyond  question  he  must  clearly 
ascertain  what  their  idea  of  the  merits  of  the  case  is. 
Among  charlatans  this  process  would  be  called 


METHODS  OF  SPEAKING.  225 

"thought-reading:"  with  advocates  it  is  merely  the 
exercise  of  common  sense — a  process  of  reasoning 
based  on  a  knowledge  of  human  nature. 

$  166.  Addressing  the  Jury— Winning  the  Master 
Mind  of  the  Jury.— A  skillful  and  experienced  advo- 
cate will  quickly  perceive  the  master  mind  of  the  jury, 
and  to  him  he  will  first  address  himself.  Nor  will  he 
be  long  in  ascertaining  whether  he  has  made  an  im- 
pression or  not.  If  he  succeed,  he  need  not  trouble 
himself  very  much  about  the  rest,  unless  there  are 
those  on  the  jury  who  have  prejudices  against  his 
case.  If  there  are,  these  prejudices  must  be  attacked, 
and  if  possible  beaten  down,  for  it  will  not  be  suffi- 
cient to  enlist  the  intelligence  of  one  or  two  minds 
against  the  prejudices  of  others.  Intelligence  and 
prejudice  are  the  two  master  influences  on  the  jury. 
If  there  be  no  prejudice  the  advocate  wins  by  con- 
vincing the  best  mind.  If  he  cannot  gain  the  strongest 
he  should  try  and  secure  the  weakest,  for  if  he  suc- 
ceed here  he  will  not  lose  his  case.  When  trumps  are 
out,  the  weakest  card  may  take  the  trick,  and  the  ad- 
vocate has  as  much  right  to  win  with  an  uneducated 
Hodge  as  with  a  philosophical  Mill.  The  jury  are 
there  for  him  to  gain  over  to  his  side  if  he  can  by 
fair  and  legal  argument,  and  by  presenting  his  case 
agreeably  to  their  minds  and  sentiments.1 

i  The  advocate  should  not  be  dismayed  at  seeing  the  eyes  of 
one  juror  closing  in  slumber  or  another  studiously  avoiding  his 
gaze.  Let  him  speak  clearly,  agreeably,  forcibly  and  with  a  deep 
conviction  of  the  truth  of  his  utterances,  and  it  may  be  said  of 
I  im,  as  of  James  Scarlett  (Lord  Abinger),  the  great  verdict  win- 
ner of  England,  that  he  possesses  a  machine  by  which  he  can 
make  the  heads  of  jurors  move  vigorously  up  and  down  in  the 
plane  of  the  perpendicular,  while  his  adversaries  have  only  an  imi- 

15 


226  AMERICAN    ADVOCACY. 

§  167.  Addressing  the  Jury— "Oratory"  Before  a 
Jury.— One  great  evil  to  avoid,  if  an  advocate  would 
be  understood  and  appreciated,  either  by  a  com- 
mon jury  or  a  special,  is  fine  talking.  Fine  lan- 
guage will  not  stand  the  wear  and  tear  of  an  ordi- 
nary nisi  prius  contest,  and  nowhere  (except  in 
the  ears  of  a  romantic  female)  is  it  so  powerful 
and  effective  as  good,  well-chosen,  homely  words. 
It  is  as  unnatural  as  the  spangled  dress  of  the  ac- 
robat, and  as  utterly  unfitted  for  the  ordinary  busi- 
ness of  a  work-a-day  life.  One  has  often  seen 
advocates  mystify  their  meaning  in  phrases  which 
were  more  like  a  girlish  novelist's  hysterical  utter- 
ances than  the  sound  language  of  a  man  and  a 
scholar.  It  will  take  a  good  and  gifted  speaker  a 
long  time,  and  will  require  a  great  deal  of  practice, 
before  he  can  venture  to  embellish  his  address  with 
the  figures  or  the  fancies  of  rhetoric;  indeed,  the 
most  gifted  and  the  most  finished  speaker  will  only 
use  them  in  a  limited  manner;  profuseness  of  orna- 
mentation, like  a  redundancy  of  words,  being  at  all 
times  more  calculated  to  obscure  the  meaning  than 
to  elucidate  it.  Above  all  things,  affectation  should 
be  avoided;  every  listener  detests  it,  and  cannot  help 
feeling  some  degree  of  contempt  for  the  person  who 
indulges  in  it.  Affectation  is  a  weakness  even  with 
strong  minds,  and  although  it  is  sometimes  tolerated 
in  a  clever  man,  it  is  never  admired;  when  an  ordi- 
nary individual  indulges  in  it  he  is — simply  despised. 
At  the  bar,  except  in  rare  cases,  the  higher  gifts  of 
oratory  are  out  of  place ;  it  is  a  limited  field ;  it  has  its 
beaten  tracks,  and  along  these  men  must  travel.  Ora- 

tation  device  which   induces  the  jurymen    to    move    their    heads 
slowly  from  side  to  side. 


METHODS  OF  SPEAKING.  227 

tory  is  not  one  of  its  paths;  in  other  words,  attempts 
at  what  is  commonly  called  oratory  are  to  be  avoided. 
What  a  figure  an  advocate  would  present  who  should 
attempt  the  flights  of  Burke  or  Webster  in  a  "running 
down"  case!  The  Kepublic  is  not  at  stake  in  every 
trial;  and  a  pickpocket  may  be  defended,  at  least  up 
to  conviction,  without  a  severe  onslaught  on  the  Con- 
stitution. 

§  168.  Forensic  Eloquence— Its  Value  and  Requi- 
sites.—Those  who  would  discourage  true  eloquence 
at  the  bar  fail  to  understand  what  it  means.  It  has 
been  defined  as  the  art  of  clothing  thoughts  in  lan- 
guage and  uttering  them  in  such  a  manner  as  is 
adapted  to  producing  conviction  or  persuasion.  Can 
this  art  be  eliminated  from  forensic  discussion  with 
advantage?  Will  it  facilitate  the  business  of  the 
courts,  and  save  time,  to  disregard  those  rules  by 
which  legal  points  are  lucidly  stated  and  facts  are 
impressively  presented? 

When  we  speak  of  eloquence,  we  do  not  refer  to 
words  without  ideas,  but  to  the  embodiment  of  ideas 
in  words  which  make  an  impression  commensurate 
with  the  thought.  The  immortal  lines  of  Shakespeare 
teach  us  what  undying  power  dwells  in  the  form  of 
words.  He  was  the  master  of  expression,  and  he 
showed  that  inspiration  is  discernible  not  only  in  the 
conception  of  the  idea,  but  in  the  shape  in  which  it  is 
presented  to  the  world.  The  power  which  gave  to 
airy  nothings  a  local  habitation  and  a  name,  united 
thought  and  phrase  in  an  indissoluble  union  and  res- 
cued even  the  commonplace  and  the  trite  from  con- 
tempt and  neglect.  When  we  have  thoughts  to  con- 
vey, our  study  should  be  how  best  to  present  them  to 


228  AMERICAN     ADVOCACY. 

the  world ;  how  to  say  what  is  in  our  minds  so  that  it 
shall  impress  others  as  it  impresses  us.  To  be  clear, 
persuasive,  and  convincing — this  is  to  be  eloquent. 
And  no  lawyer  can  afford  to  be  without  this  art,  or 
need  be  apprehensive  that  the  study  of  it  is  time 
thrown  away. 

It  is  no  objection  to  the  study  of  real  eloquence, 
that  the  courts  are  now  so  hurried  that  judges  have 
no  time  to  listen.  There  is  no  record  of  any  period 
when  courts  were  not  pressed  for  time.  There  never 
was  a  period  when  judicial  haste  did  not  pause  to  lis- 
ten with  respect  to  a  well  stated  case.  The  object  of 
eloquence  is  to  command  attention  in  the  pressure  and 
haste  of  affairs.  To  arrest  attention — that  is  the  first 
step;  to  give  a  clear  description  of  the  point  at  issue, 
is  the  next  step;  and  to  advance  with  cogency  the  ar- 
guments in  the  speaker's  favor,  is  the  conclusion  of 
the  task. 

The  next  thing  to  observe  is  to  be  logical;  without 
this  the  advocate  will  not  be  even  intelligible.  Some 
things  he  says  may  be  understood,  but  his  address 
generally  will  be  a  jumble  of  words  and  a  confusion 
of  ideas.  Of  course,  it.  is  not  meant  to  imply  that 
the  plaintiff  must  put  both  sides  logically;  by  so 
doing  he  may  reason  himself  out  of  court.  It  is  his 
own  case  and  it  matters  little  whether  the  advocate  is 
addressing  an  educated  or  an  uneducated  audience: 
the  mind  is  a  reasoning  machine,  and  it  will  the  more 
readily  grasp  arguments  that  are  put  logically  than 
those  which  are  presented  with  unnatural  distortions 
of  premise  and  sequence. 

§  169.  Forensic  Eloquence— Genius  or  Hard  Work 
as  a  Requisite.— The  modern  decline  in  oratory  is  often 


METHODS   OF  SPEAKING.  229 

mentioned,  always  deplored,  but  seldom  accounted 
for.  Political  campaigns,  together  with  the  pul- 
pit and  the  bar,  afford  the  most  available  fields 
for  the  cultivation  of  this  talent;  yet  every  observer, 
however  superficial,  knows  that  the  best  living  repre- 
sentatives of  these  three  departments  of  public  speak- 
ing are  not  the  equals  of  Wendell  Phillips  or  Henry 
Clay,  Matthew  Simpson  or  Henry  Ward  Beecher,  Ru- 
fus  Choate  or  Daniel  Webster.  This  deterioration 
has  not  resulted  from  any  radical  change  in  the  stan- 
dards of  public  taste.  Were  Webster  to  appear 
among  us  to-day,  he  would  draw  as  vast  audiences 
and  sway  men  as  absolutely  as  in  the  meridian  of  his 
genius  and  power.  The  real  explanation  is,  that  we 
have  forgotten  the  time-worn  truism,  "Poeta  nascitur, 
orator  fit/'— "The  poet  is  a  poet  born,  the  orator 
is  the  result  of  education.''  The  very  eminence  of  the 
great  orators  of  the  past  falls  in  with  our  natural  in- 
dolence and  seems  to  disprove  the  truth  of  this  ad- 
age. We  see  only  the  finished  production,  the  superb 
oration.  We  do  not  trouble  ourselves  to  look  behind 
the  scenes  and  see  how  this  grand  spectacle  was  cre- 
ated; the  headaches  and  heartaches,  the  routine  labor 
and  painstaking  care  which  were  factors  in  its  com- 
position. We  have  no  difficulty  in  believing  that  the 
story  of  Aladdin's  lamp  was  all  a  fable  and  that  the 
vast  buildings  which  ornament  our  capitals  were 
built  prosaically  by  ordinary  men,  who  laid  beam 
upon  beam,  brick  upon  brick,  until  all  was  completed. 
We  may  even  understand  how  a  coral  reef  is  formed, 
not  in  an  hour,  but  through  centuries,  by  the  tireless 
working  of  minute  insects.  But  when  we  approach 
a  great  oration,  sermon  or  legal  argument,  we  are 
more  credulous  than  children  who  believe  the  tale  of 
Aladdin  with  as  firm  faith  as  they  accept  the  story  of 


230  AMERICAN     ADVOCACY. 

Noah  and  his  Ark.  We  can  scarcely  conceive  that 
the  discourse  is  anything  less  than  the  inspired 
utterances  of  genius,  born  without  labor  and  spoken 
without  premeditation.  It  is  this  false  and  absurd 
idea  which  deters  men  from  cultivating  the  moderate 
ability  that  is  theirs  and  which  makes  great  orators 
rare.  Books  have  been  written  and  lectures  deliv- 
ered, attempting  to  show  how  the  art  of  oratory  may 
be  acquired,  but  the  subject  is  too  often  overlaid 
with  technical  rules  and  distinctions.  The  student 
is  bewildered  in  the  mass  of  details  and  readily  set- 
tles back  into  his  original  opinion  that  orators  are 
born  and  not  made.1 


i  The  ordinary  lawyer  will  point  to  Rufus  Choate,  to  Daniel  Web- 
ster, to  Mat.  Carpenter,  to  Thomas  Erskine,  to  Charles  O'Conor, 
and  attribute  their  success  as  advocates  to  inborn  genius,  rather 
than  constant,  diligent  effort.  But  a  glance  at  the  lives  of  these 
great  men  will  convince  one  of  the  vast  importance  of  hard  work 
In  the  shaping  of  their  successful  careers. 

Rufus  Choate  worked  harder  than  any  distinguished  American 
lawyer  and  advocate,  of  whom  we  have  a  record.  He  labored  faith- 
fully, to  have  a  profound  knowledge  of  the  principles  of  law  and  of 
the  current  decisions  of  the  courts;  he  read  general  literature  and 
the  classics,  to  enrich  his  mind  and  improve  his  diction;  he  studied 
the  dictionary,  to  enlarge  his  vocabulary;  he  constantly  practiced 
the  art  of  public  speaking,  and  for  forty  years,  let  no  day  pass 
without  drilling  himself  as  to  the  proper  method  of  addressing  his 
fellow  men.  He  concentrated  his  mind  upon  the  trial  of  every  case 
in  which  he  was  engaged,  and  whether  it  was  great  or  small,  de-' 
voted  the  whole  strength  of  his  intellect  and  all  his  skill  and  energy 
to  a  proper  presentation  of  it  to  court  or  jury.  He  paid  close  at- 
tention to  the  examination  of  witnesses,  and  made  copious  and 
exact  notes  of  their  testimony;  he  studied  the  notes  carefully  dur- 
ing the  intermissions  of  court,  so  that  he  might  utilize  them  the 
better  during  the  argument;  he  studied  the  faces  of  his  jurors  to 
learn  the  workings  of  their  minds;  he  made  careful  preparation 
during  the  progress  of  the  trial  for  the  argument,  and  when  the 
time  came  to  address  the  jury,  labored  with  both  mind  and  body 
to  convince  them  of  the  correctness  of  his  position.  In  the  ardor 


METHODS  OF  SPEAKING.  231 

§  170.  Forensic  Eloquence— Mental  Absorption  and 
Concentration.— Our  orator,  who  is  determined  to 
' 'speak  well,"  next  applies  his  mind  to  that  vital  part 
of  his  labor,  the  discovery  of  points  upon  which  to 
discourse.  It  is  an  unpardonable  affront  to  judges 
and  juries,  and  ruinous  to  the  reputation  of  a  speaker 
to  rely  upon  vehemence  and  rhetoric  when  substan- 
tial questions  of  life  and  property  are  at  stake.  Call 
it  meditation,  invention,  construction  of  arguments, 
or  what  you  will,  it  is  the  frame  work  on  which  all 
else  depends.  It  consists  in  delving  to  the  heart  of 
one's  case  and  extracting  weapons  for  attack  and 
arms  for  defense,  jewels  and  gold  for  beauty  and 

of  his  speech,  he  would  frequently  come  down  on  his  heels  with  a 
force  that  would  shake  the  whole  courtroom. 

The  same  is  true  of  William  Pinckney,  one  of  the  most  remarka- 
ble and  distinguished  advocates  of  the  country.  He  was  indefati- 
gable in  his  search  for  legal  knowledge.  "He  approached  every 
new  case  with  the  ardor  and  zeal  of  one  who  had  still  his  reputa- 
tion to  earn."  His  biographer  states  that,  "He  was  never  satis- 
fied with  exploring  its  facts,  and  all  the  technical  learning  which  it 
involved.  In  preparing  his  speeches,  whether  for  the  forum  or  the 
senate,  he  was  equally  unsparing  of  toil.  All  his  life  he  declaimed 
much  in  private,  and  he  carefully  premeditated,  not  only  the  gen- 
eral order  of  his  speeches,  and  the  topics  of  illustration,  but  also 
the  rhetorical  embellishments,  which  last  he  sometimes  wrote  out 
beforehand.  To  supply  himself  with  these,  he  noted  in  his  read- 
ing every  allusion  or  image  that  could  be  turned  to  use.  He 
piqued  himself  on  his  critical  knowledge  of  the  English  language, 
of  whose  structure  and  vocabulary  he  had  a  minute  knowledge,  if 
not  a  thorough  mastery.  Being  mortified,  when  in  England,  by  his 
inability  to  answer  some  question  in  classical  literature,  he  resumed 
his  classical  studies,  and  put  himself  under  an  instructor  to  acquire 
a  better  knowledge  of  ancient  literature." 

Mat  Carpenter  was  a  prodigious  worker  and  toiled  late  into  the 
night  while  engaged  in  his  cases.  Charles  O'Conor  was  a  marvel 
of  industry,  and  it  is  said  of  Emery  A.  Storrs,  that  in  the  "prepara- 
tion of  his  legal  arguments  before  a  jury,  it  was  his  custom  to 
spend  the  entire  night  while  the  trial  was  in  progress,  studying  all 
the  evidence  that  had  been  presented  during  the  day." 


232  AMERICAN    ADVOCACY. 

adornment.  But  without  one  great  prerequisite  the 
advocate  will  discover  nothing,  and  that  essential  is, 
concentration  of  thought.  This  mental  absorption 
must  be  secured,  whether  by  practice  in  steady  read- 
ing and  thinking,  the  study  of  mathematics  or  tlie 
writing  of  essays ;  but  it  must  be  secured.  If  the  mind 
plays  one  moment  and  works  the  next,  if  it  glides  off 
into  day  dreams  and  is  restive  until  it  ceases  from 
its  labor,  the  process  of  digging  into  the  subject  will 
yield  no  results.  The  treasure  often  lies  deep  and  the 
blows  of  the  pick  must  be  constant  and  pertinacious, 
stroke  on  stroke,  time  after  time,  monotonously  and 

John  Philpot  Curran,  the  distinguished  Irish  advocajte,  is  a 
good  example  of  the  remarkable  results  to  be  obtained  by  patient, 
persistent  effort.  He  had  few  of  the  natural  attributes  of  a  forensic 
orator.  He  was  awkward  in  manner,  was  small  in  stature  and  had 
poor  articulation.  At  school  he  was  known  as  "Stuttering  Jack 
Curran."  On  account  of  a  failure  in  the  first  speech  he  attempted 
to  make  in  a  debating  society,  he  resolved  to  overcome  so  far  as 
possible  his  natural  defects,  and  become  a  public  speaker.  He 
diligently  followed  a  course  of  literary  studies,  and  became  pas- 
sionately fond  of  the  classics.  At  the  same  time  he  studied  the1 
French  language  and  was  indefatigable  in  his  efforts  to  perfect 
himself  as  an  orator.  William  Matthews  says  of  him:  "Con- 
stantly on  the  watch  against  bad  habits,  he  practiced  daily  before 
a  glass,  reciting  passages  from  the  best  English  orators  and  au- 
thors. Speaking  often  in  debating  clubs  in  spite  of  the  laughter 
which  his  early  failure  provoked,  he  at  last  surmounted  every  ob- 
stacle. 'He  turned  his  shrill  and  stumbling  brogue  into  a  flexible, 
sustained  and  finely  modulated  voice;  his  action  became  free  and 
forcible,  and  he  acquired  perfect  readiness  in  thinking  on  his  legs, 
in  a  word,  he  became  one  of  the  most  eloquent  and  powerful  foren- 
sic advocates  the  world  has  seen." 

A  further  examination  into  the  lives  of  eminent  forensic  orators 
must  convince  us  that  the  average  trial  lawyer  can  greatly  improve 
his  skill  as  an  advocate  by  diligently  endeavoring  to  emulate  the 
masters  of  the  art.  It  is  more  largely  a  matter  of  industry  than  of 
genius. 


METHODS  OF  SPEAKING.  233 

stubbornly  in  one  specific  spot  until  it  surrenders  its 
riches. 

§  171.  Forensic  Eloquence— The  Value  of  a  Personal 
Inquisition.— A  glance  at  the  advocate's  theme 
may  reveal  to  him  some  valuable  points  lying  upon 
the  surface.  He  should  observe  them  well,  distrust 
first  appearances  and  be  fully  convinced  that  they 
are  reliable  before  he  accords  them  his  hearty  sup- 
port. When  the  subject  has  ceased  to  emit  its  super- 
ficial gleams,  then  commences  his  real  labor,  turning 
tails.  The  mind  must  be  constantly  and  vigorously 
aroused  by  a  system  of  catechising.  We  will,  if  the 
case  involves  the  constitutionality  of  a  statute,  ask 
ourselves,  "Who  are  the  parties  to  this  cause?  Does 
the  fact  that  a  foreigner  claims  a  right  under  the 
United  States  Constitution  suggest  any  argument  to 
us.  in  support  of  or  against  the  law!  How  has  the 
person,  who  claims  he  has  been  injured,  conducted 
himself  with  reference  to  this  law?  Did  he  assist  in 
its  passage?  Did  he  accept  benefits  under  it  which 
make  it  unfair  for  him  now  to  question  its  validity? 
Has  he  in  any  manner  occupied  a  position  inconsis- 
tent with  the  one  he  now  holds?  What  motives  actu- 
ate him  in  attacking  this  enactment?  Again,  when 
was  the  law  passed?  Was  it  at  a  time  when  party 
feeling  ran  high  or  national  disaster  seemed  immi- 
nent? Was  it  called  forth  by  some  sudden  emer- 
gency or  was  it  the  slow  growth  of  a  long-felt  need? 
What  was  its  pedigree?  Was  it  the  first  of  its  race, 
or  had  it  a  lineage  extending  back  through  many 
years  in  the  history  of  state  legislation?  How  have 
its  predecessors  been  treated  by  the  courts,  the  legis- 
latures and  the  people?  What  consequences  would 


234  AMERICAN     ADVOCACY. 

follow  if  the  law  should  be  declared  invalid.  What 
would  result  if  it  were  upheld?  What  has  been  the 
practical  operation  of  this  law?"  Throughout  the  ex- 
amination of  his  topic  he  must  hold  tenaciously  be- 
fore him  the  ultimate  point  he  wishes  to  make, 
namely,  that  the  law  is  good  or  that  it  is  bad.  When- 
ever he  loses  sight  of  this  goal,  his  investigation  will 
be  halting  and  ineffectual. 

If  the  question  in  his  case  is  not  one  of  law,  but 
arises  upon  the  facts,  he  will  pursue  much  the  same 
method,  by  questioning  himself  freely  concerning 
the  parties  to  the  suit,  their  circumstances,  age,  sex, 
race,  financial  and  social  condition,  motives,  occupa- 
tion education,  place  of  residence,- interest  or  lack  of 
interest  respecting  the  transaction  in  question.  From 
some  or  all  of  these  inquiries  he  may  derive  argu- 
ments to  establish  or  refute  the  point  in  issue.  Then 
he  will  turn  to  the  transaction  itself,  the  murder,  rob- 
bery, contract,  boiler  explosion,  railway  accident, 
slander  or  whatever  it  may  be.  He  will  ask  himself 
when,  where  and  under  what  conditions  did  it  occur? 
By  what  means?  In  what  manner?  What  were  its 
effects?  Was  this  the  first  occurrence  of  the  kind, 
etc.  These  and  similar  questions  must  be  put  until 
the  capacity  of  the  case  as  a  well-spring  of  proofs  is 
exhausted.  It  does  not  follow  that  he  will  employ  all 
the  arguments  his  industry  or  ingenuity  discover. 
But  there  is  need,  first,  to  lay  all  of  them  bare;  the 
shifting  of  the  weak  from  the  strong  may  readily  be 
performed  at  a  later  stage. 

§  172.  Forensic  Eloquence— How  to  Meet  an  Attack. 
— Thus  far  the  advocate  has  assumed  the  aggressive, 


METHODS  OF  SPEAKING.  235 

but  this  is  only  half  of  his  duty.  He  is  attacked,  and 
must  refute  and  parry  the  arguments  of  his  adver- 
sary. Sometimes  the  case  itself  will  suggest  the  ar- 
guments of  law  or  of  fact  which  the  latter  will  prob- 
ably advance.  In  other  instances  the  advocate  will 
need  to  examine  the  facts  critically  from  his  stand- 
point to  determine  what  points  will  be  relied  on  to 
support  his  opponent's  contention,  and  prepare  to 
meet  them.  He  will  take  up  his  own  arguments,  one 
after  another,  and,  assuming  that  the  first  is  falla- 
cious, will  ask  what  answer  he  can  make  to  the  con- 
clusion drawn  therefrom  by  his  opponent.  In  still 
other  cases  he  will  be  forced  to  await  his  adversary's 
argument  to  discover  his  points,  and  reply  upon  the 
instant  as  well  as  he  can.  If  the  advocate  is  able  to 
show  that  a  certain  argument  of  the  opposing  counsel 
is  inconsistent  with  another,  that  it  is  inequitable  and 
should  not  lie  in  his  mouth  to  advance  a  third,  that  a 
fourth  point  makes  for  his  side  of  the  controversy 
rather  than  in  favor  of  the  opposition,  that  a  fifth  is 
not  supported  by  the  facts,  a  sixth  is  contrary  to 
sound  public  policy,  common  sense  or  the  decisions  of 
the  courts,  and  that  a  seventh  is  against  the  spirit  and 
purpose  of  the  law,  he  will  render  invaluable  service 
to  his  client,  for  the  sapper  and  miner  are  as  neces- 
sary in  a  siege  as  the  footsoldier  or  artilleryman. 

§  173.  Forensic  Eloquence— Discussion  of  Adverse 
Authorities.— The  opposing  counsel  will  cite  the  ad- 
judications of  the  courts  to  disprove  the  advocate's 
legal  position  or  to  establish  his  own.  The  advocate's 
duty  will  then  be  to  distinguish  his  authorities  from 
the  case  in  hand.  He  will  point  out,  if  the  facts  jus- 
tify him  in  so  doing,  that  his  adversary's  cases  are 


236  AMERICAN    ADVOCACY. 

the  decisions  of  inferior  tribunals ;  are  not  recent ;  do 
not  exhaustively  consider  the  point  in  question;  the 
court  cites  few  authorities  or  none;  the  cases  have 
been  doubted  or  overruled  by  later  decisions;  they 
are  inconsistent  with  other  utterances  of  the  same 
court;  the  statements  bearing  upon  the  controversy 
at  bar  were  not  necessary  for  the  decision  of  the  point 
then  before  the  court  and  hence  are  mere  obiter  dicta; 
they  are  the  decisions  of  a  divided  court  in  which 
there  was  a  strong  dissent ;  their  facts  differ  in  a  ma- 
terial regard  from  those  of  the  present  suit;  the  case 
was  a  political  decision  and,  being  the  outcome  of  par- 
tisanship, is  not  entitled  to  controlling  weight;  it  was 
decided  at  a  time  when  the  views  of  the  public  differ- 
ed radically  from  those  of  the  present  day,  and  the 
case  is  therefore  no  longer  applicable  to  our  times. 
Finally,  if  none  of  these  avail  the  advocate  should 
boldly  declare  the  law  to  be  erroneously  stated  in  the 
decisions  cited  and,  appealing  to  the  sound  discretion 
and  manly  independence  of  the  court,  urge  the  judges 
to  act  upon  the  question  as  they  would  upon  an  origi- 
nal inquiry,  untrammeled  by  precedents  or  authority. 

§  174.  Forensic  Eloquence— Order,  Arrangement 
and  Peroration.—  /The  advocate,  still  holding  clearly 
before  him  the  ultimate  point  he  wishes  to  establish  or 
destroy,  and  with  an  array  of  lucid,  cogent  arguments 
derived  from  the  case  by  concentrated  inspection, 
takes  the  next  step  towards  ''speaking  well."  He  ar- 
ranges his  matter  in  the  best  possible  order.  There 
are  some  minds  so  logical  by  nature  that  they  need 
only  begin  the  composition  of  a  speech  and  they  can- 
not but  elaborate  their  argument  according  to  the 
most  telling  plan.  With  the  majority  of  men,  how- 
ever, there  is  need  of  a  written  outline,  with  points 


METHODS  OF  SPEAKING.  237 

separately  numbered.  These  must  be  transposed  and 
re-transposed  until  the  arrangement  appears  rational 
and  forceful.  It  has  been  aptly  said  that  in  every  dis- 
cussion there  is  always  something  that  is  naturally 
first,  and  it  is  generally  true,  also,  that  there  are  al- 
ways arguments  which  are  naturally  second,  and  third, 
and  fourth.  The  advocate  should  be  well  assured ;  the 
probabilities  are  that  the  order  of  arguments  and 
points  which  he  originally  frames  is  not  the  best  natu- 
ral order.  His  mind  will  cling  to  a  wayward  fancy  for 
its  first  born  scheme  of  argument,  either  because  it  is 
too  indolent  to  change  its  plan  or  because  of  a  law  of 
our  being  that  whatever  is  new  is  likely  to  please  us. 
He  will  cause  himself  mental  pain  by  destroying  that 
outline  and  transposing  the  parts.  But  he  must  learn 
to  tyrannize  over  himself  and  buffet  these  predilec- 
tions and  groundless  preferences  until  his  calm  and 
deliberate  judgment  approves  of  the  arrangement 
which  he  has  adopted,  even  though  it  be  the  reverse  of 
his  original  scheme. 

Only  the  most  general  suggestions  on  arrangement 
can  be  given,  for  every  cause  is  peculiar  to  itself. 
Some  delicate  and  very  natural  compliments  to  the 
court  or  jury,  an  appropriate  reference  to  the  impor- 
tance and  interest  attaching  to  the  case,  a  brief  men- 
tion of  the  persons  engaged  in  the  litigation  or  of  the 
place  or  time  of  the  trial,  may  be  the  first  words  the 
advocate  utters,  and  they  should  gradually  glide  into 
the  body  of  his  discussion.  If  he  speak  after  his  ad- 
versary, a  strong  commencement  is  secured  by  open- 
ing with  the  sentiment  which  the  latter  used  in  clos- 
ing or  with  one  emphasized  by  him  during  his  argu- 
ment, turning  it  into  a  weapon  against  him  and  thus 
utilizing  it  both  as  an  introduction  and  an  argument. 


238  AMERICAN    ADVOCACY. 

In  marshalling  his  points,  the  advocate  should  nev- 
er begin  or  close  with  one  that  is  weak.  While  his 
judgment  and  sense  of  propriety  must  determine  the 
procedure  in  every  instance,  as  "a  general  rule  it  is 
better  to  place  doubtful  arguments  in  the  middle  of 
a  speech,  a  strong  point  at  the  beginning  and  the 
strongest  at  the  close.  The  feeble  ones  will  then  de- 
rive strength  from  their  surroundings. 

The  advocate  should  not  hurl  at  the  judges  or  jury 
all  the  arguments  he  has  conceived.  He  should  let 
many  of  them  go,  especially  those  which  are  finely 
drawn,  scholastic  and  such  as  would  appeal  rather  to 
an  audience  of  students  and  professors  than  to  plain, 
practical  men.  If  he  do  not  dare  omit  his  weaker 
points,  then  mass  them,  project  them  in  a  body,  one 
after  another  in  quick  and  brilliant  succession,  that 
they  may  obtain,  in  combination,  a  force  and  effect 
which  they  are  incapable  of  producing  when  taken 
singly. 

If  the  advocate  defend  against  an  attack,  his  meth- 
od may  be  the  exact  reverse  of  that  suggested.  JJe 
may  separate  the  weak  arguments  advanced  by  his  ad- 
versary and  refute  them  one  by  one,  thus  making  the 
destruction  of  his  citadel  easier  when  all  the  redoubts 
and  outposts  have  been  captured.  On  other  occasions 
the  advocate's  common  sense  may  direct  him,  in  the 
first  instance,  to  throw  all  his  weight  upon  his  strong- 
est point  and,  having  beaten  it  down,  take  up  his  min- 
or contentions  and  dispose  of  them  with  greater  ease 
and  dispatch.  Here,  as  everywhere,  he  is  to  remem- 
ber that  the  order  in  which  he  finally  arrays  his  argu- 
ments is  not  always  that  in  which  they  first  occurred 
to  him.  It  is  the  best  order  he  must  use,  not  the  easi- 
est. 


MHTHODS  OF  SPEAKING.  239 

In  closing,  it  is  well  for  the  advocate  to  sum  up  the 
entire  argument  upon  his  side  if  the  case  is  at  all  dif- 
ficult, and  then  bear  strongly  upon  the  equitable  feat- 
ures of  the  controversy.  If  the  advocate  has  been 
contending  for  the  letter  of  the  law  and  has  laid  stress 
upon  technical  or,  it  may  be,  hard  and  repellant,  ar- 
guments, he  should  demonstrate  to  the  court  or  jury 
that  his  position  involves  substantial  justice  and  fair 
dealing,  equity  and  good  conscience.  The  tribunal 
will  be  readier  to  give  credit  to  the  rest  of  his  discus- 
sion if  it  believes  that  by  its  judgment  or  verdict, 
mercy  and  truth  may  meet,  righteousness  and  peace 
embrace. 

All  parts  of  the  argument  must  lead  naturally  and 
gradually  into  each  other.  Unless  for  effect,  there 
should  never  be  a  violent  and  abrupt  transition  in  the 
thought.  The  last  sentiment  the  advocate  has  spoken 
should  contain  within  it  the  germ  of  its  successor,  and 
melt  easily  and  agreeably  into  the  latter.  This  is  ac- 
quired only  through  practice;  but  if,  by  a  voluntary 
effort,  he  bring  his  mind  to  bear  upon  it  while  he 
speaks,  its  difficulties  will  soon  vanish. 

The  surest  and  simplest  methods  for  the  advocate 
to  master  the  art  of  perfect  arrangement  and  grace- 
ful transition  are  to  read  and  study  the  speeches  of 
great  orators,  and  to  compose  written  discourses  of 
his  own,  applying  the  foregoing  suggestions,  awk- 
wardly and  painfully  at  first,  no  doubt,  but  assidu- 
ously, until  they  come  unbidden  and  he  acquire  that 
"instinct  of  skill"  which  is  the  consummation  of  all 
study.  Having  then  said  the  things  which  the  sub- 
ject and  the  occasion  call  for  and  require,  having  said 
them  as  acceptably  as  he  may,  dealing  with  the  salient, 
the  strong,  the  vital  points  in  his  case,  after  thorough 


240  AMERICAN    ADVOCACY. 

preparation,  then  let  the  advocate  achieve  as  he  may 
the  proudest  and  richest  trophy  of  court-room  oratory 
— and  simply  quit! 

§  175.  Elocution— Cultivation  of  the  Powers  of 
Speech.— Elocution  has  much  to  do  with  forensic  elo- 
quence. Elocution  is  the  art  that  deals  with  the  man- 
ner in  which  we  say  things.  In  our  matter  of  fact 
civilization  we  lay  so  much  stress  on  the  importance 
of  the  thing  said  that  we  care  nothing  for  the  way  in 
which  we  say  it.  We  ignore  the  art  of  elocution  as 
useless  to  anyone  except  the  schoolboy  and  the  theat- 
rical apprentice.  The  result  is  that  we  have  lawyers 
of  high  reputation  to  whom  it  is  anything  but  a  pleas- 
ure to  listen  when  they  are  addressing  a  court  and 
jury.1 

We,  of  course,  would  not  advocate  the  cultivation  of 
an  unnatural  style  or  manner,  or  recommend  a  course 
of  study  which  would  rob  a  lawyer  of  his  individual- 
ity. Artificiality  and  insincerity  are  to  be  avoided  by 
all  means.  But  is  there  any  good  reason  why  a  law- 
yer should  not  be  able  to  improve  by  instruction  and 
practice,  his  manner  of  addressing  courts  and  juries, 
and  at  the  same  time  retain  his  own  distinctive  indi- 
viduality in  gesture,  tone  and  mode  of  utterance? 

i  The  author  had  the  opportunity  of  attending  the  argument  of 
the  famous  suit  of  the  United  States  v.  The  Northern  Securities 
Company,  which  took  place  in  the  United  States  Circuit  Court  of 
Appeals  at  St.  Louis  in  1903.  Several  of  the  attorneys  for  the 
Securities  Company  and  for  some  of  the  defendant  railroads  were 
absolutely  monotonous.  Their  expression  was  frightful.  They 
mumbled  their  words,  and  at  the  end  of  a  long  and  involved  sen- 
tence would  allow  their  voices  to  gradually  die  away  into  a  mere 
whisper — a  very  common  error.  The  comparison  of  these  dull,  unim- 
passioned  speeches  with  the  electrical,  sparkling,  well^delivered 
address  of  United  States  Attorney  Beck  must  have  impressed  even 
the  court  and  have  had  something  to  do,  probably,  with  their 
unanimous  decision  in  favor  of  the  government's  contention. 


METHODS  OF  SPEAKING.  241 


> » 


Many  lawyers  are  familiar  with  the  "jury  voice. 
Some  lawyers  talk  to  a  jury  in  a  loud  tone  of  voice, 
usually  in  a  high  key,  and,  without  modulation,  go  on 
monotonously,  to  the  end,  frequently  wearing  them- 
selves out,  as  well  as  the  jury.  What  a  distinct  ad- 
vantage a  lawyer  with  a  good  voice  has !  When  prop- 
erly handled,  how  it  pleases,  calms,  arouses  or  thrills ! 
Unemotional  as  we  may  believe  ourselves  to  be  as  a 
class,  a  public  speaker  with  a  clear,  ringing,  well 
modulated  voice  can  cause  the  blood  to  course  through 
our  veins,  fill  us  with  love,  pity,  fear  or  hatred,  and 
impel  us  to  a  course  of  conduct  that  we  never  would 
have  followed  had  it  not  been  for  the  potent  charm 
of  the  human  voice.  If  such  results  can  be  obtained 
by  the  use  of  the  advocate's  vocal  powers,  he  shall 
certainly  at  times  be  able  to  win  a  doubtful  case  by 
the  manner  in  which  he  uses  his  voice.1 

i  Demosthenes,  in  the  early  part  of  his  career,  complained  that 
with  the  utmost  endeavor  he  could  find  no  favor  with  the  people. 
Satyrus,  the  actor,  asked  him  to  repeat  a  selection  from  Euripides 
or  Sophocles.  Demosthenes  complied,  and  then  Satyrus  recited  the 
same  speech  in  such  a  way  as  to  make  it  seem  marvelous  to 
Demosthenes.  It  sounded  like  an  entirely  different  speech.  Fol- 
lowing the  example  set  by  Satyrus,  and  exercising  the  most  pains- 
taking care,  he  soon  became  the  greatest  orator  of  ancient  or 
modern  times. 

Rufus  Choate  earnestly  recommended  the  study  of  elocution.  He 
made  this  statement  in  regard  to  it:  "Elocutionary  training  I 
most  highly  approve  of.  I  would  go  to  an  elocutionist  if  I  could  get 
time.  I  have  always,  even  before  I  first  went  to  Congress,  practiced 
a  daily  sort  of  elocutionary  culture,  combined  with  a  culture  of  the 
emotional  nature  I  have  read  aloud,  or  rather  spoken,  every  day, 
a  page  from  Burke,  or  some  such  author,  laboring  for  two  things: 
to  feel  all  the  emotions  of  indignation,  sarcasm,  commiseration, 
etc.,  which  were  felt  by  him,  and  also  to  make  my  voice  flexibly 
express  all  the  changes  of  pitch  and  time,  etc.,  appropriate  to  the 
fluctuation  of  thought.  I  have  done  this  in  my  room,  and  there- 
fore did  not  give  vent  to  loudness  or  violence,  but  found  great 

16 


242  AMERICAN     ADVOCACY. 

§  176.  Elocution— Imitation  _and  Affectations  of 
Speech.— It  is  equally  necessary  to  warn  the  young 
advocate  against  a  very  common  and  fascinating 
error — that  of' imitation .  A  really  good  advocate  has 
a  style  of  his  own,  and  an  individuality  which  would 
be  utterly  spoilt  were  he  to  attempt  to  blend  it  with 
that  of  another.  To  imitate  a  successful  man's  style 
is  like  a  short  man  putting  on  a  tall  man's  coat.  How- 
ever well  fitted  the  one,  it  is  sure  to  look  ridiculous 
on  the  other.  Style  is  born  with  a  man  as  much  as 
his  mental  capacity  itself.  Nor  should  it  be  forgotten 
that  imitators,  as  a  rule,  adopt  the  failings  and  not 
the  excellences  of  their  models.  Affectations  of  speech 
and  mannerisms  are  what  generally  catch  the  eye  of 
the  imitator.  Besides  this,  imitations  are  bad  in 
themselves.  As  a  rule,  they  are  grotesque  representa- 
tions and  little  more  than  burlesques  of  the  original. 
It  is  at  once  apparent  that  they  are  no  part  of  the  imi- 
tator's individuality,  however  well  they  may  be  done. 
It  does  not,  of  course,  follow  that  the  best  advocates 
are  not  therefore  to  be  accurately  studied;  it  is  ser- 
vile imitation  that  is  to  be  deprecated,  not  the  careful 
observance  of  the  graces  and  excellences  of  the  best 
men.  The  smooth,  unruffled  demeanor,  the  courtesy, 
the  polished  ease,  the  unexaggerated  eloquence,  the 
order  and  arrangement  of  speeches,  the  skillful  and 
subtle  modes  of  cross-examination,  the  fearless  inde- 
pendence of  the  masters  of  advocacy,  should  be  stu- 
diously considerered.  But  wherever  there  is  an  ex- 
travagance of  style,  even  though  it  may  be  fascinat- 
ing in  the  advocate  to  whom  it  is  natural,  it  should 
never  be  imitated.  An  imitator  must  of  necessity  be 

range  of  tone  possible,  nevertheless.     I  constantly  strove  also  to 
make  my  tones  strong  and  full  and  the  throat  well  opened." 


METHODS  OP    SPEAKING.  243 

a  second  or  third-rate  man,  and  is  generally  below 
even  that.  At  the  best  he  plays  but  a  poor  part,  and 
his  best  imitation  does  him  the  least  credit. 

§  177.  Danger  of  Achieving  a  Reputation  as  a  Wit- 
— The  advocate  should  avoid  in  his  argument  all  at- 
tempt at  witticism.  Crack  no  jokes;  tell  no  funny 
stories  in  the  argument  of  the  case  to  court  or  jury. 
The  advocate  will  by  his  fun  and  levity  undoubtedly 
entertain  the  jury — possibly  the  court;  but  that  is  not 
what  he  is  there  for.  By  his  brilliant  flashes  of  wit, 
and  by  his  delightful  humor,  and  by  his  really  good 
stories — and  they  are  the  dangerous  ones — he  will 
excite  an  expectation  in  the  jury  for  more  fun  after  a 
while,  and  they  will  be  impatiently  waiting  for  some- 
thing funnier  still  further  on ;  while  it  is  to  the  doubt- 
ful questions,  the  questions  that  need  clearing  up,  that 
he  should  address  himself;  and  he  should  by  his  own 
seriousness  impress  the  jury  that  to  him  and  to  his  cli- 
ent that  case  is  a  matter  of  grave  and  serious  con- 
cern. The  lawyer  who  achieves  a  reputation  for  be- 
ing a  funny  man  is  doomed,  so  far  as  his  advocacy  is 
concerned;  just  like  the  sensational  preacher  is  doom- 
ed when  he  has  achieved  the  reputation  of  being  sen- 
sational. He  may  build  up  congregations,  but  he  will 
never  build  up  churches — never  did.  You  may  win 
the  applause  and  secure  the  verdict  of  that  unsworn 
jury  that  sits  without  the  bar;  but  when  that  sworn 
jury  retires  to  the  jury-room  to  consider  his  case,  it 
will  be  the  weightier  matters  and  not  the  "mint,  anise 
and  cummin"  of  the  case  that  will  engage  their 
thought. 

§  178.  Appropriate   Physical   Gestures  and  Facial 
Expressions  in  Speaking.— Nothing   is    so    cold   and 


244  AMERICAN    ADVOCACY. 

clammy  as  an  address  of  a  speaker  who,  sphynx-like, 
looks  at  you  without  even  one  unnecessary  wink  of 
the  eyelid",  and  rolls  out  his  words  like  a  phonograph 
without  the  least  outward  evidence  of  feeling.  Facial 
expression  and  physical  gesture,  when  used  naturally 
and  appropriately  to  the  occasion,  are  tremendously 
effective  in  forensic  pleading. 

Appropriate  facial  expression  is  probably  the  most 
important  outward  evidence  of  feeling.  The  deep 
frown,  the  inquiring  or  sarcastic  flight  of  the  eye- 
brows, the  fierce  gnashing  of  the  teeth,  the  contemptu- 
ous curling  of  the  lip,  the  piercing  flashes  of  the  eyes 
— all  these  and  possibly  many  other  equally  effective 
manipulations  of  the  facial  muscles,  may  very  profit- 
ably be  used  to  embellish  the  speech  of  the  forensic 
orator.1  Of  course,  these  facial  expressions  must  be 

i  In  the  days  when  Henry  Clay  was  'at  his  prime  as  a  lawyer  a 
man  was  once  being  tried  for  murder  and  his  case  looked  hopeless 
indeed.  He  had  without  any  seeming  provocation  murdered  one 
of  his  neighbors  in  cold  blood.  Not  a  lawyer  in  the  county  would 
touch  the  case.  It  looked  bad  enough  to  ruin  the  reputation  of  any 
barrister.  The  man,  as  a  last  extremity,  appealed  to  Mr.  Clay  to 
take  the  case  for  him.  Every  one  thought  that  Clay  would  cer- 
tainly refuse.  But  when  the  celebrated  lawyer  looked  into  the 
matter  his  fighting  blood  was  roused,  and,  to  the  great  surprise 
of  all,  he  accepted. 

Then  came  the  trial,  the  like  of  which  was  never  seen.  Clay 
slowly  carried  on  the  case,  and  it  looked  more  and  more  hopeless. 
The  only  ground  of  defense  the  prisoner  had  was  that  the  mur- 
dered man  had  looked  at  him  with  such  a  fierce,  murderous  look 
that  out  of  self-defense  he  had  struck  first.  A  ripple  passed  through 
the  jury  at  this  evidence. 

The  time  came  for  Clay  to  make  his  defense.  It  was  settled  in 
the  minds  of  spectators  that  the  man  was  guilty  of  murder  in  the 
first  degree.  Clay  calmly  proceeded,  laid  all  the  proof  before 
them  in  his  masterful  way.  Then,  just  as  he  was  about  to  conclude, 
he  played  his  last  and  master  card. 

"Gentlemen  of  the  jury,"  he  said,  assuming  the  fiercest,  blackest 
look  and  carrying  the  moat  undying  hatred  in  it  that  was  ever  seen, 


METHODS  OF  SPEAKING.  245 

natural  in  order  to  prevent  them  from  being  ludicrous. 
Some  advocates  twist  their  faces  into  so  painful  a 
grimace  when  they  address  a  jury  that  one  would 
think  the  weight  of  their  task  caused  them  physical 
torture.  Others  attempt  to  screw  their  features  into 
looks  of  supreme  contempt,  anger  or  scorn.  It  is  not 
every  one  who  can  convey  his  sentiments  by  a  look. 
The  face  takes  its  expression  from  the  feelings;  and 
an  advocate  can  no  more  give  it  a  natural  look  which 
does  not  spring  from  that  natural  source  than  he  could 
make  the  face  of  an  India-rubber  doll  beam  with  pleas- 
ure. It  is  only  by  thoughtful  labor  and  study  that  the 
sculptor  can  obtain  an  expression  upon  the  marble 
which  faintly  represents  the  emotions.  It  is  quite 
clear  every  one  is  not  artist  enough  to  put  the  right 
muscles  in  motion  to  produce  a  corresponding  effect 
upon  his  own  features  whenever  he  desires  it.  At- 
tempts of  this  kind,  therefore,  are  not  only  ludicrous 
but  foolish.  The  most  certain  method  of  insuring  this 
necessary  naturalness  in  expression  is  for  the  speak- 
er to  work  himself  up  to  a  high  pitch  of  feeling  and 
then  give  way  to  every  impulse  that  naturally  sug- 
gests itself  as  a  proper  outlet  of  the  pent-up  fires  of 
feeling  that  have  been  kindled  within  the  breast.  But 
it  must  be  remembered  that  without  these  kindled 

"gentlemen,  if  a  man  should  look  at  you  like  this  what  would  you 
do?" 

That  was  all  he  said,  but  that  was  enough.  The  jury  was  startled 
and  some  even  quailed  on  their  seats.  The  judge  moved  uneasily 
on  his  bench.  After  fifteen  minutes  the  jury  filed  slowly  back  with 
a  "Not  guilty,  your  honor."  The  victory  was  complete. 

When  Clay  was  congratulated  on  his  easy  victory,  he  said:  "It 
was  not  so  easy  as  you  think.  I  spent  days  and  days  in  my  room 
before  the  mirror  practicing  that  look.  It  took  more  real  hard 
work  to  give  that  look  than  to  investigate  the  most  obtuse  case." 


AMERICAN     ADVOCACY. 

fires  of  feeling  there  can  be  no  natural  facial  expres- 
sion— indeed,  there  can  be  no  true  eloquence. 

Appropriate  gestures  are  a  very  strong  second  to 
appropriate  facial  expressions.  The  trembling,  quiv- 
ering frame,  the  heavy  stamping  of  the  feet,  the 
graceful,  undulating  movements  of  the  body,  the  di- 
rect pointing  of  the  finger,  the  spectacular  flourish  of 
the  arms,  the  haughty  twist  of  the  head,  these  and 
many  other  graceful  and  forceful  movements  of  the 
body  and  its  appendages  can  be  made  very  effective 
not  only  in  lending  emphasis  to  the  arguments  advanc- 
ed but  also  to  assist  wonderfully  in  making  clear  to 
the  hearer  the  exact  meaning  of  the  language  with 
which  the  speaker  has  clothed  his  thoughts.  Of  course, 
naturalness  is  as  necessary  here  as  in  the  making  of 
proper  facial  expressions  although  its  absence  is  not 
so  dangerous.  Practice,  in  debating  societies  or  else- 
where, will  here,  as  in  every  other  desired  achieve- 
ment in  life,  make  perfect. 


CHAPTER  XV. 

LEGAL  ETHICS. 


§179,  General  Code  of  Ethics. 

180.  Code  of  Legal  Ethics. 

181.  Inviolability    of    the    Code 

of    Ethics. 

182.  To    What    Extent    Profes- 

sional Conduct  is  Af- 
fected by  the  Code. 

183.  Methods  of   Enforcing  the 

Code. 

184.  The     Advocate's     Relation 

to  the  State — General 
Considerations. 

185.  The     Advocate's    Relation 

to  the  Court — General 
Considerations, 

186.  The     Advocate's     Relation 

to  the  Court— Attitude 
Towards  the  Judge. 

187.  The     Advocate's     Relation 

to  the  Court — Attitude 
Towards  the  Jury. 

188.  The     Advocate's     Relation 

to  the  Court — Attitude 
Towards  His  Own  and 
Opposing  Witness. 

189.  The     Advocate's     Relation 

to  the  Court — Should 
an  Advocate  Practice 
in  a  Court  in  which  the 
Judge  is  His  Near 
Kinsman? 


J190.  The  Advocate's  Relation 
to  the  Court — The  Im- 
personality of  the  Ad- 
vocate. 

191.  The     Advocate's     Relation 

to  His  Client — The  Su- 
premacy of  the  Client's 
Interests. 

192.  The     Advocate's     Relation 

to  His  Client— Is  Truth 
a  Higher  Obligation? 

193.  The     Advocate's    Relation 

to  His  Client — Defend- 
ing One  Whom  the  Ad- 
vocate Believes  to  be 
Guilty. 

194.  The     Advocate's     Relation 

to  His  Client — Becom- 
ing a  Party  to  a  Fraud, 
or  Maintaining  Harass- 
ing or  Oppressive  Liti- 
gation. 

195.  The     Advocate's     Relation 

to  His  Client— Use  of 
Improper  Methods  or 
Influences. 

196.  The     Advocate's     Relation 

to  His  Profession — Gen- 
eral Considerations. 

197.  The     Advocate's     Relation 

to  His  Profession — At- 
titude Towards  Oppos- 
ing Counsel. 


§  179.  General  Code  of  Ethics.— The  term  "ethics" 
is  derived  from  the  Greek  word  "ethos,"  signifying 
"custom  or  usage."  Ethics,  therefore,  as  a  science, 


248  AMERICAN     ADVOCACY. 

is  in  its  generic  sense  a  study  of  the  origin  and  au- 
thority of  the  customs  and  usages  of  the  people  of  any 
particular  locality  in  matters  of  private  duty  and  ob- 
ligation. Of  course,  in  a  metaphysical  and  abstract 
sense,  the  word  has  come  to  have  a  more  extended 
meaning  as  denoting  the  study  of  the  action  of  the  mind 
in  determining  what  is  wrong  and  what  is  right  in  ac- 
cordance with  certain  standards  set  up  and  establish- 
ed by  the  collective  or  individual  conscience.  Never- 
theless, for  our  purpose  the  original  signification 
must  be  kept  constantly  in  mind.  Indeed,  in  the  study 
of  any  phase  of  the  general  subject  of  ethics,  this  con- 
ception should  be  given  more  or  less  prominence.1  All 
systems  or  "schools"  of  ethics  trace  the  origin  of  the 
principles  of  conduct  which  they  advocate  to  certain 
customs  or  usages  of  the  people,  except,  of  course, 
such  systems  as  are  founded  upon  reasoning  purely 
metaphysical,  in  which  case  the  individual  sets  up  his 
own  standard  or  "moral  touchstone,"  artificial  or 
otherwise,  by  which  he  determines  the  right  or  wrong 
of  any  particular  action.  When  not  artificial  in  its 
origin  this  "moral  touchstone"  of  the  individual  is 
termed  "conscience,"  The  "collective  conscience," 
therefore,  of  a  community  is  the  origin  of  the  particu- 
lar moral  customs,  usages  or  moral  standards  of  that 
community,  and  establishes  the  code  of  ethics  or  rules 
of  conduct  for  that  community.  It  may  be  called  "pub- 
lic opinion;"  but  whatever  called,  it  is  the  one  great 

i  "When  man  reaches  the  stage  of  philosophical  questioning,  and 
communes  with  himself  concerning  morals  as  of  other  things  in 
general,  he  comes  to  the  task  with  morality  ready-made  and  in  full 
operation.  His  real  object  is  not  to  find  speculative  principles  and 
deduce  morality  from  them  as  if  morality  had  to  be  invented  for 
the  first  time,  but  to  assign  principles  on  which  he  may  account  for 
the  morality  already  familiar  to  him."  Pollock's  Essays,  293. 


LEGAL  ETHICS.  249 

source  of  all  practical  systems  of  ethics,  etiquette  and 
good  manners.  Therefore  we  have  different  stan- 
dards of  morality  in  different  communities,  the  varia- 
tion in  which  is  largely  due  to  the  past  history,  educa- 
tion and  environment  of  the  people  composing  that 
community. 

§  180.  Code  of  Legal  Ethics.— For  the  same  reason 
that  different  communities  may  have  different  stand- 
ards of  morality  in  general,  so,  also,  different  castes, 
guilds,  crafts,  or  professions,  may,  because  of  their 
peculiar  lines  of  work  and  the  inter-relation  and  asso- 
ciation of  their  members,  require  additional  stand- 
ards to  determine  the  propriety  and  morality  of  ac- 
tions and  transactions  peculiar  to  such  castes,  guilds, 
crafts  or  professions.1  The  profession  of  the  law  is 
no  exception  to  this  rule.  The  code  of  legal  ethics  is 
that  system  of  rules  which  by  mutual  consent  is  ob- 
served by  members  of  the  legal  profession  as  the 
standard  by  which  to  determine  the  propriety  of  their 
conduct  and  relationship  toward  their  clients,  the 
courts  and  other  members  of  the  profession.  Of  course, 
such  a  system  of  ethics  does  not  supplant  the  general 
code  observed  by  the  community  as  a  whole.  It  only 
adds  to  these  standards  of  morality,  observed  by  the 
general  public,  additional  rules  of  conduct  applicable 
to  the  profession  of  law  and  its  peculiar  relationship 
and  duties. 

On  August  27th,  1908,  in  the  city  of  Seattle,  the 

i  "A  craft,  or  profession,  from  its  experience  and  observation, 
establishes  certain  canons  of  ethical  import  and  makes  rules  for  the 
guidance  and  government  of  its  members.  The  rules  may  be  ex- 
press or  implied,  and  it  is  immaterial  whether  they  be  written  or 
unwritten.  It  is  sufficient  that  they  have  received  a  general  assent  by 
substantial  observance  only.  They  then  become  binding  on  all  of 
the  members,  and  derelictions  therefrom  constitute  breaches  of  the 
ethical  code."  Warvelle's  Essays  on  Legal  Ethics,  p.  19. 


250  AMERICAN     ADVOCACY. 

American  Bar  Association  adopted  a  written  code 
which  it  entitled,  Canons  of  Professional  Ethics,  and 
which  was  drawn  up  after  thorough  and  careful  con- 
sideration by  a  committee  of  the  most  prominent  law- 
yers of  the  country  under  the  able  direction  of  Hon.  St. 
George  Tucker,  of  Virginia. 

This  code  sprang  at  once  into  immediate  popularity 
throughout  the  profession  and  quickly  supplanted  all 
local  written  and  unwritten  codes.  All  local  bar  as- 
sociations adjusted  themselves  to  the  new  code  and 
courts  and  legislatures  made  it  a  part  of  the  course  of 
study  of  every  applicant  for  a  license  to  practice  law. 

This  written  code,  while  it  is  but  declaratory  of  the 
unwritten  rules  of  conduct  which  the  best  lawyers  have 
held  inviolate  for  centuries,  has  the  advantage  of 
speaking  clearly  and  with  authority.  And  since  it 
restricts  the  older  and  more  successful  practitioner  in 
many  of  its  prohibitions  as  severely  as  it  does  the 
younger  lawyer,  it  has  obtained  the  latter's  generous 
and  enthusiastic  support  where  formerly  it  had  only 
his  grudging  compliance. 

The  Canons  of  Professional  Ethics  are  set  out  in 
full  in  the  appendix  and  fully  indexed.  Reference 
should  be  frequently  made  to  these  rules  to  test  one's 
professional  conduct  which  cannot  profitably  depart 
too  far  from  an  observance  of  the  spirit  of  their  pro- 
visions. 

§  181.  Inviolability  of  the  Code  of  Ethics.— No  caste, 
guild,  craft  or  profession  is  possessed  of  a  code  of 
ethics  which  is  more  jealously  guarded  than  that  of 
the  profession  of  law.1  And  this  is  not  without  rea- 

i  "Legal  ethics  may  be  distinguished  from  the  general  subject  in 
that,  while  a  violation  of  the  moral  code,  as  established  by  the  con- 
ventions of  society,  will  usually  result  in  nothing  worse  than  social 


LEGAL  ETHICS.  251 

son.  No  profession,  not  even  that  of  the  doctor  or  the 
preacher,  are  as  intimate  in  their  relationship  with 
the  people  as  that  of  the  lawyer.  To  the  doctor  the 
patient  discovers  his  physical  ailments  and  symptoms, 
to  the  preacher  the  communicant  broaches  as  a  gen- 
eral rule  only  those  things  that  commend  him  in  the 
eye  of  heaven,  or  those  sins  of  his  own  for  which  he 
is  in  great  fear  of  eternal  punishment,  but  to  his  law- 
yer he  unburdens  his  whole  life,  his  business  secrets 
and  difficulties,  his  family  relationships  and  quarrels 
and  the  skeletons  in  his  closet.  To  him  he  often  com- 
mits the  duty  of  saving  his  life,  of  protecting  his  good 
name,  of  safe-guarding  his  property,  or  regaining  for 
him  his  liberty.  Under  such  solemn  and  sacred  re- 
sponsibilities, the  profession  feels  that  it  owes  to  the 
people  who  thus  extend  to  its  members  such  unparal- 
leled confidence  the  duty  of  maintaining  the  honor  and 
integrity  of  that  profession  on  a  moral  plane  higher 
than  that  of  the  merchant,  the  trader  or  the  mechanic. 
And  having  the  power  to  maintain  its  high  profes- 
sional standards  by  a  show  of  authority  possessed  or 
enjoyed  by  no  other  profession,  a  lawyer  takes  his 
professional  life  in  his  hand  when  he  violates  any  of 
these  unwritten  rules  of  conduct  sustained  by  the  ov- 
erwhelming sentiment  of  the  profession  and  strictly 
and  summarily  enforced  by  the  courts.  The  young 
lawyer,  fresh  from  the  victories  of  the  class-room  may 
be  inclined  sometimes  to  become  restless  under  the 
limitations  imposed  upon  him  by  the  code  of  ethics 

ostracism,  a  disregard  of  the  ethics  of  the  bar  may  result  in  profes- 
sional death.  In  society  men  are  kept  within  bounds  by  no  stronger 
a  force  than  public  opinion,  but  in  the  legal  profession  a  summary 
Jurisdiction  is  lodged  in  the  courts  to  discipline  offenders  against 
good  morals  and  good  conscience."  Warvelle's  Essays  in  Legal 
Ethics,  p.  20. 


252  AMERICAN    ADVOCACY. 

and  to  regard  them  as  an  imposition.  It  is  only  when 
it  is  explained  to  him  that  his  profession  is  not  an  in- 
dependent one,  that  its  members  are  mere  officers  of 
the  court  and  not  only  derive  all  their  authority  from 
the  court  but  are  subject  to  all  reasonable  orders  and 
regulations  imposed  upon  them  by  the  courts  and, 
through  the  courts,  by  the  profession  itself,  that  he 
recognizes  not  only  the  unreasonableness  of  his  objec- 
tions but  their  futility  as  well.  Another  deterring  in- 
fluence to  one  inclined  to  be  recalcitrant,  and  one  not 
to  be  lightly  estimated,  is  that  of  the  respect  and  good- 
will of  other  members  of  the  profession.  The  public 
very  wisely  rates  a  lawyer  by  what  his  professional 
brethren  think  of  him,  and  an  advocate  who,  by  his  un 
professional  tactias  and  conduct,  assiduously  invites 
and  cultivates  the  enmity  of  the  members  of  his  own 
bar,  will  very  quickly  hit  the  bottom,  and  stay  there 
among  the  "snitches"  and  vagabonds  of  the  profes- 
sion until  he  comes  to  himself,  and  by  circumspecting 
his  conduct  and  courting  the  confidence  and  respect  of 
other  lawyers,  he  finally  wins  the  place  to  which  his 
ability  entitles  him.1 

§  182.  To  What  Extent  Professional  Conduct  is  Af- 
fected by  the  Code.— It  of  course  goes  without  saying 
that  a  lawyer  should  be  a  gentleman  and  a  good  citi- 
zen, but  for  violations  of  the  general  rules  of  etiquette 

i  "The  bar  has  a  rigid  form  of  etiquette  with  respect  to  many 
transactions.  A  violation  of  this  form  is  attended  only  by  a  loss  of 
professional  standing.  .At  first  blush  this  punishment  does  not  seem 
very  severe,  and,  because  fts  effect  is  not  always  immediately  ap- 
parent, many  men  are  induced  to  persist  in  practices  that  contra- 
vene accepted  standards.  But,  in  the  end,  there  is  scarcely  any 
form  of  punishment  that  can  compare  with  it."  Warvelle's  Essays  in 
Legal  Ethics,  p.  49. 


LEGAL  ETHICS.  253 

or  even  for  violations  of  the  criminal  code,  unless  the 
provision  of  the  code  is  but  a  declaration  of  the  rule 
of  legal  ethics,  the  lawyer  is  not  responsible  or  an- 
swerable in  his  professional  capacity.  The  lawyer's 
responsibility  for  professional  misconduct  extends 
only  to  those  relationships  into  which  he  enters  by 
virtue  of  his  office,  but  as  these  relationships  are  so 
extensive  in  their  various  ramifications,  it  is  difficult 
to  put  a  definite  limit  on  the  applicability  of  the  code 
of  ethics  to  a  lawyer's  conduct  and  actions.  These 
relationships  may  be  grouped  under  four  heads — (1) 
the  advocate's  relation  to  the  state;  (2)  the  advocate's 
relation  to  his  client;  (3)  the  advocate's  relation  to 
the  court;  (4)  the  advocate's  relation  to  his  profes- 
sion. The  statutes  in  most  states  provide  that  a  li- 
cense to  practice  law  authorizes  the  advocate  "to  ap- 
pear in  all  the  courts  within  the  state  and  there  to 
practice  as  an  attorney  and  counselor  at  law,  accord- 
ing to  the  laivs  and  customs  thereof,  for  and  during 
his  good  behavior  in  said  practice."1  By  the  term 
"laws  and  customs"  of  practice  is  meant  the  princi- 
ples of  the  code  of  ethics  as  well  as  the  rules  of  court 
provided  for  the  purpose  of  regulating  the  local  prac- 
tice-of  the  law. 

"While  as  a  general  rule  the  private  life  and  char- 
acter of  the  advocate  are  not  called  in  question  by  the 
court  on  ethical  grounds,  at  least  as  to  particular  acts 
of  misconduct,  still  where  an  advocate,  by  repeated 
and  deliberate  wrongdoing  in  his  private  life  and 
transactions,  gains  a  reputation  so  damaging  as  to  in- 
jure him  in  his  standing  before  the  community  as  a 
man  of  good  moral  character,  the  court,  at  the  instance 
of  the  profession  or  some  proper  authority,  may  dis- 

i  Rev.  Stat.  Mo.,  1899,  Sec.  4918. 


254  AMERICAN    ADVOCACY. 

cipline  the  offender  or  cut  him  off  entirely  from  the 
ranks  of  the  profession.1 

§  183.  Methods  of  Enforcing  the  Code— By  Court 
Proceedings.— The  courts  enforce  the  principles  of 
professional  ethics  by  summary  proceedings.  This 
jurisdiction  of  the  court  seems  to  he  derived  from  the 
general  supervisory  and  disciplinary  power  which  a 
court  exercises  over  its  own  officers.  The  advocate  be- 
ing nothing  more  than  an  officer  of  the  court — a  part 
of  the  judicial  machinery — is  under  the  immediate  con- 
trol of  the  court ;  as  much  so  as  any  other  part  of  the 
judicial  machinery. 

The  first  and  most  important  method  of  enforcing 
the  code  of  ethics  is  that  of  disbarment,  a  proceeding 
that  absolutely  extinguishes  the  professional  life  of  the 
advocate.  This  is  the  most  severe  and  effective  of  all 
proceedings  for  enforcing  the  provisions  of  the  code 
and  is  administered  only  in  cases  of  flagrant  disregard 
of  professional  ethics  or  high  moral  duty.2 

1  "It  is  an  essential  condition  to  admission  to  practice  that  the 
applicant  shall  be  a  man  of  good  moral  character.    The  primary  ob 
ject  of  this  is  to  maintain  a  high  standard  of  moral  excellence  in 
the  profession  and  conserve  the  ancient  dignity  of  the  bar.     This 
being  true,  it  necessarily  follows  that  this  essential  character  should 
be  maintained  after  admission,  and  when  the  conduct  of  the  licenti- 
ate clearly  shows,  either  that  the  court  was  deceived  at  the  time  of 
his  admission,  or  that  there  has  been  a  moral  degeneracy  since  that 
time,  a  proper  case  for  discipline  may  be  presented."     Warvelle's 
Essays  in  Legal  Ethics,  p.  47. 

2  "It  is  laid  down  in  all  the  books  in  which  the  subject  is  treated 
that  a  court  has  power  to  exercise  a  summary  jurisdiction  over  its 
attorneys  to  compel  them  to  act  honestly  towards  their  clients,  and 
to  punish  them  by  fine  and  imprisonment  for  misconduct  and  con- 
tempts, and,  in  gross  cases  of  misconduct,  to  strike  their  names 
from  the  roll.    If  regularly  convicted  of  a  felony,  an  attorney  will 
be  struck  off  the  roll  as  of  course,  whatever  the  felony  may  be,  be- 


LEGAL  ETHICS.  255 

Another  proceeding  is  that  of  suspension.  This  is 
but  a  species  of  the  first  proceeding;  indeed,  suspen- 
sion is  disbarment  for  a  definite  period  of  time.  It  is  a 
remedy  which  is  administered  in  cases  which  would 
hardly  justify  a  decree  of  disbarment. 

A  third  proceeding  is  that  of  the  imposition  of  a 
fine.  This  is  a  very  effective  remedy  because  of  the 
fact  that  the  cffurt  will  often  compel  the  guilty  party 
to  work  out  his  fine.  Another  method  of  discipline  is 
that  by  way  of  reprimand,  which  is  one  very  frequent- 
ly administered. 

It  must  be  borne  in  mind  that  this  power  to  discip- 
line advocates  is  administered  not  for  the  sake  of  pun- 
ishing the  offender — (the  criminal  courts  will  do 
that) — nor  merely  to  assert  the  dignity  of  the  court — 

cause  he  is  rendered  infamous.  If  convicted  of  a  misdemeanor 
which  imports  fraud  or  dishonesty,  the  same  course  will  be  taken. 
He  will  also  be  struck  off  the  roll  for  gross  malpractice  or  dishon- 
esty in  his  profession."  Bradley,  J.,  in  Ex  parte  Wall,  107  U-  S. 
265,  273. 

In  Archbold's  Practice,  editions  by  Chitty,  p.  148,  it  is  said:  "The 
court  will,  in  general  interfere  in  this  summary  way  to  strike  an  at- 
torney off  the  roll,  or  otherwise  punish  him,  for  gross  misconduct, 
not  only  in  cases  where  the  misconduct  has  arisen  in  the  course  of 
a  suit,  or  other  regular  and  ordinary  business  of  an  attorney,  but 
where  it  has  arisen  in  any  other  matter  so  connected  with  his  pro- 
fessional character  as  to  afford  a  fair  presumption  that  he  was  em- 
ployed in  or  intrusted  with  it  in  consequence  of  that  character." 

And  it  is  laid  down  by  Tidd  that  "where  an  attorney  has  been 
fraudulently  admitted,  or,  after  admission,  had  been  convicted  of 
felony,  or  other  offense  which  renders  him  unfit  to  be  continued  an 
attorney,  or  has  knowingly  suffered  his  name  to  be  made  use  of  by 
an  unqualified  person,  or  acted  as  agent  for  such  person,  or  has 
signed  a  fictitious  name  to  a  demurrer,  or  otherwise  grossly  misbe- 
haved himself,  the  court  will  order  him  to  be  struck  off  the  roll." 
1  Tidd's  Practice,  89. 

The  above  quotations  evidence  the  indefinite  application  of  the 
code  of  ethics.  For  a  review  of  the  authorities  we  refer  the  reader 
to  the  celebrated  case  of  Ex  parte  Wall,  supra. 


256  AMERICAN     ADVOCACY. 

(that  is  a  matter  that  comes  under  the  subject  of  con- 
tempts), but  to  assert  the  dignity  of  the  profession 
and  vindicate  the  authority  of  he  ethical  code. 

§  184.  Methods  of  Enforcing  the  Code— By  Profes- 
sional "Courts  of  Honor."— For  lack  of  a  shorter  and 
more  suggestive  term  I  have  grouped  under  the  term, 
"Courts  of  Honor,"  all  those  committees  by  whatever 
names  they  may  be  called,  created  by  several  local  bar 
association,  to  construe  the  code  and  answer  questions 
with  relation  to  its  violation  in  specific  cases.  The 
most  notable  of  these  committees  is  the  Committee  on 
Professional  Ethics  of  the  New  York  County  Bar  As- 
sociation. This  committee  has  at  regular  intervals 
passed  on  hundreds  of  questions  submitted  to  them 
for  their  opinions.  These  opinions  are  published  and 
constitute  a  valuable  commentary  on  the  Code  of 
Ethics.  The  questions  are  submitted  by  lawyers  of 
every  station  of  professional  attainment  and  cover 
every  phase  of  ethical  delinquency.1 

In  Chicago  the  Executive  Committee  of  the  local  bar 
association  have  also  for  some  time  been  handing  down 
opinions  on  questions  submitted  by  members  of  the 
association. 

It  will  be  interesting  to  watch  the  development  of 
this  new  method  of  enforcing  the  Code  of  Ethics  and 
it  is  not  unlikely  that,  the  coming  generations  of  the 
bar  will  be  compelled  to  find  room  on  their  shelves  for 
sets  of  reports  setting  forth  the  opinions  of  these 
newly-constituted  professional  courts  of  honor. 

§  185.  The  Advocate's  Relation  to  the  State— Gen- 
eral Considerations.-To  the  state  the  lawyer  sustains 

J.  See  appendix  for  report  of  decisions  of  the  New  York  Com- 
mittee on  questions  of  legal  ethics. 


LEGAL  ETHICS.  257 

a  most  intimate  and  important  relation.  To  him  is 
intrusted  the  enforcement  of  its  laws,  and  hardly  any- 
thing could  be  conceived  more  detrimental  to  a  state 
than  a  corrupt  and  antagonistic  bar.  Most  states, 
therefore,  require  that  one  applying  for  a  license  to 
practice  law  shall  make  an  oath  to  support  the  con- 
stitution and  laws  of  the  state  and  of  the  United 
States. 

So  also  when  this  peculiar  relation  of  the  advocate 
to  the  state  is  taken  into  consideration,  it  would  seem 
incongruous  that  one  convicted  of  a  violation  of  the 
laws  of  a  state  should  be  permitted  to  remain  as  an 
officer  to  assist  in  the  enforcement  of  the  laws  he  has 
trampled  under  foot.  It  is  therefore  provided  in  many 
states  that  a  lawyer  convicted  of  a  felony  or  an  infa- 
mous crime  shall  be  disbarred  from  his  right  to  prac- 
tice law.  This  is  also  the  rule  at  common  law.1 

Another  important  consideration  for  the  advocate 
to  remember  is  that  not  only  must  he  himself  not  vio- 
late the  constitution  or  laws  of  the  land,  but  he  must 
not  assist  or  encourage  others  to  do  so.  If  he  do,  he 
commits  a  most  serious  breach  of  professional  ethics, 
and  in  severe  cases  may  be  suspended  or  removed 
from  practice.  Thus  it  has  been  held  that  where  an 
attorney  exhorted  a  mob  of  citizens  to  take  the  law  in 

i  The  fact  that  the  crime  has  been  condoned  does  not  affect  the 
case.  Thus,  in  a  case  before  Lord  Mansfield,  an  attorney  was  con- 
victed of  theft,  and  the  crime  was  condoned  by  burning  in  the  hand. 
The  court  nevertheless  ordered  his  name  struck  from  the  roll.  "The 
question  is,"  said  Lord  Mansfield,  "whether,  after  the  conduct  of 
this  man,  it  is  proper  that  he  should  continue  a  member  of  a  pro- 
fession which  should  stand  free  from  all  suspicion.  *  *  *  It  is 
not  by  way  of  punishment;  but  the  courts  in  such  cases  exercise 
their  discretion,  whether  a  man  whom  they  have  formerly  admitted 
is  a  proper  person  to  be  continued  on  the  roll  or  not." 

17 


258  AMERICAN     ADVOCACY. 

their  own  hand  and  urged  them  to  enter  a  jail  and 
take  therefrom  a  prisoner,  against  whom  the  popular 
mind  had  been  inflamed,  and  lynch  him,  such  attorney 
was  liable  to  summary  disbarment  without  trial,  with- 
out petition  and  on  the  court's  own  motion.2 

§  186.  The  Advocate's  Relation  to  the  Court— Gen- 
eral Considerations.— It  has  already  been  intimated 
that  the  work  of  the  advocate  is  not  entirely  an  in- 
dependent calling.  The  advocate  is,  in  truth,  merely 
an  officer  of  the  court.  In  ancient  times  the  first  li- 
censed practitioners  were  called  Servientes  Domini 
Regis  ad  legum — "  Servants  at  law  of  our  Lord,  the 


-  Ex  partc  Wall,  107  U.  S.  265.  In  this  case  it  appeared  that  on 
a  certain  day  an  attorney  took  part  in  a  riotous  and  tumultuous 
mob  who  were  seeking  the  life  of  a  certain  person  charged  with  a 
very  foul  crime.  The  attorney  addressed  the  mob  in  excited  tones 
and  advised  and  urged  them  to  enter  the  jail  and  lynch  the  pris- 
oner. The  mob  followed  his  advice  and  his  leadership  and  hung  the 
prisoner.  The  court,  of  its  own  motion,  cited  the  attorney  thus  im- 
plicated in  this  terrible  crime  to  appear  at  a  certain  time  and  show 
cause  why  his  name  should  not  be  stricken  from  the  roll.  After  the 
hearing  the  court  entered  judgment  striking  the  name  of  the  delin- 
quent attorney  from  the  roll..  In  affirming  the  decision  of  the  lower 
court,  the  United  States  Supreme  Court,  speaking  through  Mr- 
Justice  Bradley,  said: 

"Now,  what  is  the  offense  with  which  the  petitioner  stands 
charged?  It  is  not  a  mere  crime  against  the  law;  it  is  much  more 
than  that.  It  is  the  prostration  of  all  law  and  government;  a  de- 
fiance of  the  laws;  a  resort  to  the  methods  of  vengeance  of  those 
who  recognize  no  law,  no  society,  no  government.  Of  all  classes 
and  professions,  the  lawyer  is  most  sacredly  bound  to  uphold  the 
laws.  He  is  their  sworn  servant;  and  for  him,  of  all  men  in  the 
world,  to  repudiate  and  override  the  laws,  to  trample  them  under 
foot,  and  to  ignore  the  very  bonds  of  society,  argues  recreancy  to 
his  position  and  office,  and  sets  a  pernicious  example  to  the  insubor- 
dinate and  dangerous  elements  of  the  body  politic.  It  manifests  a 
want  of  fidelity  to  the  system  of  lawful  government  which  he  has 
sworn  to  uphold  and  preserve." 


LEGAL  ETHICS.  259 

King."1  The  idea  contained  in  this  distinguished  ap- 
pellation has  never  been  departed  from.  The  Amer- 
ican lawyer  owes  his  allegiance  to  his  state  and  es- 
pecially to  the  state's  judicial  representative — the 
court,  whose  officer  he  is.  This  peculiar  relation  is 
found  in  no  other  profession;  the  physician,  indeed, 
is  not  subject  to  any  tribunal  empowered  to  interfere 
with  and  regulate  his  practice  by  arbitrary  rules ;  and 
even  the  preacher,  if  he  feels  the  restraint  of  his  syn- 
od or  general  conference  to  be  too  exacting,  may  go  out 
as  a  free  lance  and  by  an  extravagant  and  abusive  style 
of  preaching,  which  would  not  be  tolerated  for  one 
moment  in  a  court  of  law,  attract  to  himself  a  large 
following  and  incidentally  a  large  income.  But  a 
lawyer's  existence  depends  on  his  agreeable  relations 
with  the  court.  If  he  is  persona  non  grata  with  that 
tribunal,  his  business  as  an  advocate  is  gone.  If,  there- 
fore, an  advocate  should  impugn  the  integrity  of  the 
court  or  bring  its  judgments  into  disrepute  he  may  be 
severely  reprimanded  and  punished  by  the  court  he 
has  abused,  and  in  severe  cases  he  may  be  disbarred 
from  practice.  Some  attorneys  fail  to  appreciate  this 
fact,  with  disastrous  results  to  themselves.  They 


i  "The  first  persons  regularly  licensed  to  appear  as  advocates  in 
the  king's  courts  were  called  'sergeants,'  although  their  full  official 
title  seems  to  have  been  Servientes  Domini  Regis  ad  legum.  That 
is,  'Servants  at  law  of  our  Lord,  the  King.'  Unlike  all  prior  advo- 
cates, they  were  a  part  of  the  court  itself;  were  regularly  appointed 
by  royal  patent;  were  admitted  only  upon  taking  an  oath;  had  a 
monopoly  of  all  practice,  and  were  directly  amenable  to  the  king  as 
parts  of  his  judicial  system.  The  fundamental  ideas  involved  in 
the  creation  of  this  class  has  never  been  abandoned,  and,  notwith- 
standing that  the  class  itself  by  the  name  'sergeants'  has  ceased  to 
exist,  they  are  still  the  distinguishing  characteristics  of  the  bar  in 
all  countries  where  the  common  law  prevails."  Warvelle's  Essays 
in  Legal  Ethics,  p.  29. 


AMERICAN    ADVOCACY. 

seem  to  think  that  they  must  be  guilty  of  some  crime 
or  gross  unfairness  or  fraud  against  their  client  in 
order  to  justify  their  disbarment  from  practice.  Un- 
doubtedly the  majority  of  cases  arise  under  such  cir- 
cumstances, but  the  courts  frown  equally  as  sternly 
upon  actions  of  an  attorney  that  bring  the  court  or  its 
officers  into  disrepute.1  The  advocate,  therefore, 
should  make  it  his  chief  concern  to  uphold  the  integ- 
rity and  dignity  of  the  court  before  his  client  and  be- 
fore the  public. 

In  this  connection  it  might  not  be  improper  to  men- 
tion, what  would  seem  only  too  evident  but  for  its  not 
infrequent  occurrence — that  to  tamper  with  the  rec- 
ords of  the  court  clandestinely  for  the  advocate's  own 
advantage,  or  for  any  other  purpose,  is  not  only  strict- 
ly unprofessional,  but  will  render  the  advocate  liable 
to  be  summarily  dismissed  from  the  profession.2 

i  People  v.  Goodrich,  79  111.  148;  People  v.  McCabe,  18  Colo.  18G, 
32  Pac.  Rep.  28,  36  Am.  St.  Rep.  270. 

-  People  v.  Murray,  166  111.  630.  In  this  case  it  was  held  that  where 
an  attorney  falsified  a  bill  of  exceptions  after  the  judge  had  signed 
it,  and  procured  the  clerk  to  certify  a  transcript  of  the  record  con- 
taining the  false  matters,  he  was  guilty  of  such  misconduct  as  would 
empower  the  supreme  court,  in  the  exercise  of  its  discretion,  to 
summarily  strike  the  name  of  such  an  attorney  from  the  roll.  In 
this  case  the  lawyer  was  a  young  man  just  admitted  to  the  bar.  He 
pleaded  ignorance,  but  the  court  refused  to  listen  to  the  plea.  The 
court  said:  "He  was  twenty-seven  years  old,  has  had  charges  of  two 
or  three  cases  in  the  appellate  court,  and  made  abstracts  in  them, 
had  studied  law  sufficiently  to  be  admitted  to  the  bar,  and  must 
have  known  the  uses  and  objects  of  testimony.  *  *  *  But  if  his 
testimony  is  true,  it  evidences  a  want  of  moral  sense  which  would 
render  him  incapable  of  appreciating  and  discharging  the  duties 
and  obligations  of  a  lawyer  toward  the  courts.  If,  at  his  age,  and 
with  his  experience,  he  cannot  discern  the  necessity  and  propriety 
of  observing  the  truth  and  not  imposing  upon  the  courts  by  false- 
hood, it  is  plainly  our  duty  to  protect  litigants  against  such  practices 
as  he  indulges  in,  although  he  may  not  think  them  improper.  A 


LEGAL  ETHICS.  261 

§  187.  The  Advocate's  Relation  to  the  Court— Atti- 
tude Towards  the  Judge.— When  the  barrister  enters 
the  court  room  he  is  morally  bound  to  act  fairly  to- 
ward the  court,  deceiving  it  neither  upon  the  law  nor 
the  facts,  quoting  authorities  truthfully  and  offering 
no  garbled  extracts  nor  cases  known  by  him  to  be  over- 
ruled. He  will  accord  to  the  magistrate  that  defer- 
ence which  the  office  demands,  irrespective  of  the  man 
who  fills  it;  a  degree  of  courtesy  not'easily  attainable, 
since  a  large  part  of  a  judge's  duty  is  said  to  be  ren- 
dering it  disagreeable  for  counsel  to  talk  nonsense. 
He  must  deal  openly,  not  attempting  in  private  inter- 
views and  casual  encounters  to  prejudice  the  mind  of 
the  judge  by  ex  pa  tie  statements,  or  to  insinuate  ar- 
guments against  the  adversary  which  the  latter  is  not 
present  to  answer.  Toward  the  judge  he  must  con- 
duct himself  with  the  utmost  deference,  yet  with  firm- 
ness and  a  due  regard  for  his  client's  rights,  being 
neither  overawed  by  the  judge's  greatness  nor  filled 
with  unconcealed  contempt  at  his  ignorance.  If  an  ad- 
vocate is  called  to  face  some  Jeffries  on  the  bench,  who 
seeks  to  override  law  and  lawyers,  he  should  remem- 
ber his  personal  dignity  that  he  is  as  much  an  officer 
of  the  court  as  is  the  judge;  his  interest  in  the  case 
and  his  client's  welfare;  and  thus  emboldened,  stand 
firm  with  the  respectful  resolution  of  Erskine  when 
he  braved  Lord  Mansfield  and  pronounced  his  famous 
arraignment  of  the  Earl  of  Sandwich,  which  won  him 
his  cause  and  his  fame,  and  who  afterwards  said  that 
he  dared  speak  as  he  did  because  he  felt  his  little  chil- 
dren plucking  him  by  his  robe  and  saying:  "Now, 

person  with  such  ideas  should  not  be  numbered  among  the  mem- 
bers of  the  profession  whose  duty  it  is  to  aid  in  the  establishing  of 
truth  and  the  administration  of  justice." 


262  AMERICAN     ADVOCACY. 

father,  now  is  the  time  to  get  us  bread!"  The  advo- 
cate should  remember  that  the  judge  is  unfamiliar 
with  the  case,  and  with  much  of  the  law  pertaining  to 
it;  that  his  special  preparation  renders  him  far  bet- 
ter acquainted  with  both  the  law  and  the  facts  than  is 
the  judge;  that  his  duty  is  to  assist  the  latter,  and  to 
that  end  to  take  nothing  for  granted;  he  is  to  watch 
for  signs  of  especial  interest  on  the  judge's  part,  and 
welcome  interruptions  which  show  at  what  points  he 
is  experiencing  difficulty. 

§  188.  The  Advocate's  Relation  to  the  Court— Atti- 
tude Towards  the  Jury.— Toward  the  jury  the  advo- 
cate's demeanor  should  be  manly  and  winning.  They 
must  be  treated  with  deference  and  no  slight  is  to  be 
cast  upon  any  class  of  men  to  which  they  may  belong. 
They  will  not  resent  the  utmost  simplicity  of  state- 
ment, or  the  homeliest  explanation  of  the  law  and  the 
evidence,  but  if  they  conceive  the  advocate  is  not  in 
earnest  or  is  misleading  them,  they  will  do  the  most 
embarrassing  thing  they  can  think  of — take  out  their 
watches  and  yawn  while  he  speaks.  The  advocate 
should  look  at  them  as  individual  men,  not  as  "a  jury." 
He  should  know  something  of  their  separate  histories 
if  he  can,  and  make  them  his  confidential  friends  as  he 
stands  before  them  in  argument.  Look  them  straight 
in  the  face  with  an  earnest  "significant  look." 

Policy,  if  no  higher  incentive,  directs  the  lawyer  to 
preserve  a  strict  integrity  toward  the  jury,  neither 
misleading  them  by  falsely  colored  statements  of  the 
evidence  nor  by  loose,  ill-considered  propositions  of 
law.  Nor  will  he  testify  before  them  while  purporting 
to  advance  his  arguments.  He  will  recall  his  oath  en- 
joining upon  him  respect  for  the  court,  and  he  will 
never,  save  in  extreme  and  exceptional  instances, 


LEGAL  ETHICS.  263 

strive  to  set  against  each  other  the  judge,  who  declares 
the  law,  and  the  jury,  who  must  apply  it.  In  all  things 
he  will  remember  the  admonition  offered  four  cen- 
turies ago  to  his  younger  brethren  by  one  learned  in 
the  law:  "I  counsel  thee  that  thou  do  nothing  against 
truth ;  if  thou  do  thus,  I  trust  the  lantern,  which  is  thy 
conscience,  shall  never  be  extincted." 

§  189.  The  Advocate's  Relation  to  the  Court— Atti- 
tude Towards  His  Own  and  Opposing  Witnesses.— In 
his  dealings  with  a  witness  upon  the  stand,  he  is  under 
no  obligation  to  examine  him  upon  all  phases  of  the 
controversy.  He  may  properly  assume  the  adversary 
will  develop  those  points  which  are  damaging  to  the 
opposite  party.  Nor  is  he  compelled  to  enter  upon 
subjects  which  the  witness  is  privileged,  by  the  law, 
to  conceal.  He  will  never  indulge  in  bravado  and  in- 
sult toward  those  testifying  with  evident  fairness,  nor 
will  he  be  brutal  in  investigating  the  private  life  of  an 
ingenuous  witness,  solely  for  the  purpose  of  degrading 
him  in  the  eyes  of  the  jury.  The  true  barrister  will 
also  scorn  the  practice  of  distorting  the  language  of 
the  testimony  by  his  argument,  or  putting  into  the 
mouth  of  another  words  and  sentiments  he  did  not  ut- 
ter.1 


i  "An  advocate  should  not  descend  to  the  insidious  art  of  inducing 
a  witness  to  answer  with  one  meaning  and  assume  his  reply  to  bear 
another,  and  thus  lead  him  to  give  evidence  which,  intended  to  be 
true,  shall  have  the  effect  of  falsehood.  Such  conduct  is  a  species 
of  criminal  trickery  so  nearly  allied  to  subornation  of  perjury  that 
it  is  difficult,  from  a  moral  point  of  view,  to  distinguish  between 
them.  *  *  *  No  lawyer  can  long  continue  in  the  practice  of  con- 
fusing the  honest,  browbeating  the  timid,  falsely  construing  the 
words  of  a  witness,  or  placing  in  his  mouth  words  that  were  never 
uttered,  without  acquiring  the  character  of  a  trickster."  Warvelle's 
Essays  in  Legal  Ethics,  p.  109. 


264  AMERICAN    ADVOCACY. 

No  less  reprehensible  is  it  to  approach  the  witnesses 
of  the  adversary,  or  the  adversary  himself,  under  the 
guise  of  friendly  interest  and  thereby  secure  facts  in 
the  case  which  would  not  have  been  divulged  had  the 
real  character  of  the  interlocutor  been  known.  On  the 
other  hand,  if  the  opposing  party  at  any  stage  of  the 
proceedings  seek  advice  from  his  antagonist's  attor- 
ney, professional  ethics  require  an  outspoken  refusal 
to  act  for  both  sides  of  the  controversy.  Should  it 
happen  that  the  attorney  who  is  thus  approached  sees 
it  is  advantageous  for  each  party  that  a  given  course 
be  pursued,  he  may  honestly  comply  with  his  oppon- 
ent's request,  but  never  if  the  interests  of  the  litigants 
are  irreconciliable ;  for  either  he  will  betray  his  em- 
ployer or  practice  a  deception  upon  one  who  consults 
him  as  a  confidant,  and  discovers,  too  late,  that  the 
kisses  of  an  enemy  are  deceitful. 

In  regard  to  improper  methods  of  procuring  wit- 
nesses to  testify,  it  goes  without  saying  that  the  brib- 
ery of  opposing  witnesses  is  not  only  in  violation  of 
the  code  of  ethics,  but  subjects  the  offender  to  the  pen- 
alties of  the  criminal  code  as  well.  Whether,  however, 
an  advocate,  in  order  to  persuade  a  witness  favorable 
to  his  side  of  the  controversy  to  be  in  attendance  at 
the  trial,  may  contract  to  pay  such  witness  a  certain 
sum  of  money,  does  not,  to  our  mind,  admit  of  any 
doubt.  We  can  conceive  of  no  reasonable  objection 
to  such  conduct.  It  does  not  corrupt  the  witness,  but 
merely  secures  to  him  a  reasonable  compensation  for 
his  trouble  in  place  of  the  meager  pittance  allowed  by 
law.  Whether  a  witness  may  be  offered  a  fee  for  his 
testimony,  in  addition  to  his  compensation  for  loss  of 
time,  does  not  seem,  at  the  present  time,  to  admit  of 
much  doubt.  The  public  as  well  as  the  profession  have 


LEGAL  ETHICS.  265 

not  shown  any  spirit  to  condemn  the  practice,  at  least 
so  far  as  expert  witnesses  are  concerned. 

§  190.  The  Advocate's  Relation  to  the  Court- 
Should  an  Advocate  Practice  in  a  Court  in  Which  the 
Judge  Is  His  Near  Kinsman.— There  is  nothing  in  law 
to  prevent  an  advocate  from  practicing  in  a  court  over 
which  his  father  presides.  Nor  can  such  practice  be 
construed  strictly  unethical,  although  rules  of  legal 
etiquette  would  seem  to  interpose  an  objection.  The 
reason  that  neither  law  nor  ethics  make  any  protest 
to  a  situation  of  this  kind  is  because  an  attorney  or 
counsel  in  a  suit  is,  in  theory,  presumed  to  have  no 
personal  interest  in  the  event  of  that  suit,  and  that  his 
fee  is  not  contingent  upon  the  result;  that  he  is  re- 
garded as  disinterested  and  unchallengeable,  though 
he  may  be  of  near  kin  to  the  judge  presiding  at  the 
trial.  And  thus  there  is  no  recognized  positive  law 
which  is  held  to  exclude  an  attorney  or  counsel  from 
appearing  on  the  trial  of  a  cause  in  his  father's  court. 
The  objection  to  his  appearing  in  such  relation,  if  any, 
can  only  rest  upon  that  natural  bias  of  feeling  and 
sympathy  which  a  judge  is  supposed  to  entertain  to- 
wards his  own  son  or  brother,  or  other  near  kinsman, 
who  may  have  charge  of  a  cause  in  his  court — an  inter- 
est which  he  is  not  supposed  to  have  toward  the  oppo- 
site counsel  who  is  not  so  related  to  him.1 

i  "To  illustrate  this  principle,"  says  John  F.  Hageman  in  14  Cent. 
L.  J.  268,  "take  the  case  of  a  young,  struggling  lawyer  who  is  re- 
tained in  a  suit  involving,  if  he  succeeds,  a  million  of  dollars  to  his 
client,  and  to  himself  an  enormous  fee,  besides  a  reputation  which 
is  equivalent  to  a  fortune.  Brilliant  success  in  a  celebrated  case 
has  often  lifted  a  lawyer  from  obscurity  to  eminence  in  his  profes- 
sion. Now  place  this  young  man  with  such  a  suit  in  a  court  in 
which  his  near  kinsman — his  father,  for  example,  is  the  judge,  and 
assume  such  judge  to  be  a  man  of  rare  purity  and  honor  in  life — a" 


266  AMERICAN     ADVOCACY. 

A  judge  placed  in  such  circumstances  may  be  strong 
enough  to  disobey  the  feelings  and  affections  of  his 
nature,  and  may  conduct  the  trial  of  the  cause  with 
absolute  blindness  to  the  parties  and  their  counsel, 
and  with  indifference  as  to  the  result  of  the  case,  but 
if  the  efforts  of  his  kinsman  in  court  should  be  suc- 
cessful, there  would  naturally  be  clamor  and  scandal 
raised  by  the  losing  party  and  his  sympathizers 
against  the  integrity  and  impartiality  of  the  court, 
which  would  affect  public  opinion  and  impair  public 
confidence  in  the  judiciary.2 

model  man.  Yet  he  is  not  a  model  man  if  he  is  destitute  of  natural 
affection,  or  sympathy  stronger  than  a  mere  bias  for  the  success 
and  upbuilding  of  the  reputation  and  fortune  of  his  own  son.  Is  it 
not  easy  to  see  that  in  the  trial  of  the  cause,  and  in  the  charge  to 
the  jury,  especially  in  arraying  and  commenting  upon  the  testi- 
mony, the  judge  would  likely  be  warped,  quite  unconsciously,  and, 
it  may  be,  with  great  subtlety,  giving  his  official  influence  to  secure 
a  verdict  favorable'  to  the  side  which  his  son  had  espoused?  In 
questions  of  pure  law  there  is  not  so  much  danger  from  the  par- 
tiality of  the  judge  because  his  rulings  can  be  reviewed  before  a 
higher  tribunal  when  his  reputation  will  be  involved.  But  in  ques- 
tions of  fact  at  nisi  prius,  thera  is  scope  for  a  strong  partiality 
without  any  corrective  influence." 

2  John  F.  Hageman  in  the  article  from  which  we  have  quoted  in 
the  former  note,  gives  some  prominent  illustrations  of  the  recogni- 
tion of  this  rule.  He  says:  "It  is  to  avoid  even  a  suspicion  of  par- 
tiality that  some  judges  of  great  delicacy  of  honor  have  been  un- 
willing that  their  sons,  or  other  near  kinsmen,  should  practice  in 
their  courts.  Judge  Roosevelt,  of  New  York,  twenty-five  years  ago, 
was  an  example  in  point,  and  no  member  of  the  New  York  bar  or 
bench  was  more  respected  for  his  fine  sense  of  professional  honor 
than  he.  Another  illustrious  example  among  the  members  of  the 
New  York  bar  was  found  in  James  T.  Brady,  who  was  recognized 
as  the  soul  of  honor.  When  his  brother,  John  R.  Brady,  became 
judge  of  the  Common  Pleas  in  the  City  of  New  York,  James,  solely 
because  of  his  relationship  to  the  judge  abstained  from  that  time 
from  all  practice  in  his  brother's  court,  though  he  was  offered  large 

fees  to  make  motions  in  that  court. 

- 

At  the  Philadelphia  bar  we  had  an   illustrious  example   in  the 


LEGAL  ETHICS.  267 

It  may  be  urged  that  judges  are,  and  should  be, 
above  the  suspicion  of  partiality  or  bias  under  all  cir- 
cumstances, without  regard  to  personal  friendship  or 
natural  affection  so  far  as  the  members  of  the  bar  are 
concerned.  Whether  this  is  so  or  not,  the  lawyers  do 
not  assume  it  to  be  so,  even  in  cases  where  the  judge 
is  of  the  most  exalted  character  for  honor  and  integ- 
rity. And  if  it  were  known  how  severely  the  practice 
is  condemned  by  the  bar  and  the  public,  and  what  scan- 
dal attaches  to  it  in  many  cases,  no  judge  who  respects 
his  office  and  his  honor  would  subject  them  to  such  as- 
persions. 

§  191.  The  Advocate's  Relation  to  the  Court— The 
Impersonality  of  the  Advocate.— One  of  the  common- 
est faults  of  the  young  and  inexperienced  lawyer  is  to 
thrust  liimself  too  prominently  into  his  case,  making 
his  own  honor  and  veracity  an  issue  to  the  total  exclu- 

United  States  District  Court,  over  which  Judge  Cadwallader  pre- 
sided for  many  years.  His  son,  John  Cadwallader,  was  an  honora- 
ble member  of  that  bar,  but  he  never  practiced  in  his  father's  court, 
although  his  business  there  would  have  been  very  remunerative  on 
account  of  bankruptcy  proceedings  therein.  The  judge  suggested  to 
his  son  the  propriety  of  his  confining  his  practice  to  other  courts; 
and  during  the  entire  judicial  life  of  the  judge,  both  he  and  his  son 
adhered  with  scrupulous  fidelity  to  this  principle  of  professional 
delicacy  and  judicial  ethics.  And  their  conduct  in  this  respect 
elicited  the  warmest  commendation  of  the  bar. 

There  are  doubtless  many  other  similar  instances  in  the  various 
states,  which  are  not  very  generally  known.  And  there  are  also, 
perhaps,  many  more  cases  of  the  other  class,  in  which  no  regard  is 
paid  to  the  relationship  of  the  attorney  to  the  judge;  or  rather, 
such  relationship  is  often  the  ground  on  which  multiplied  retainers 
are  given  to  an  attorney  in  the  court  of  his  father  or  near  kinsman. 
These  retainers  are  generally  understood  to  be  given,  not  because 
of  his  ability  or  experience,  but  simply  because  of  his  kindred  rela- 
tion to  the  court.  His  business  increases;  his  briefs  multiply;  large 
corporations  select  him  for  counsel,  though  they  already  have 
older  and  superior  men  retained  and  depended  upon." 


268  AMERICAN     ADVOCACY. 

sion  and  obscurity  of  his  client.  This  is  not  only  un- 
wise, but  highly  unprofessional.  A  lawyer  is  an  ad- 
vocate— one  who  speaks  for  another.  He  is  not  to 
protrude  his  own  personality;  and  to  the  extent  he 
does  so,  he  either  cheats  his  client  or  unfairly  influ- 
ences the  court  or  jury  in  his  favor,  depending  upon 
the  fact  whether  he  is  a  man  of  little  or  great  influ- 
ence. In  either  case  he  acts  unprofessionally.  Many 
a  lawyer  has  proceeded  to  the  trial  of  a  cause  on  the 
assumption  that  he  was  identified  with  the  merits  of 
the  cause  of  his  client.  This,  we  scarcely  need  point 
out,  is  an  entirely  erroneous  view  of  the  functions  of 
the  advocate.  He  is  the  representative  of  the  inter- 
ests of  his  client,  and  not  the  guarantor  of  the  right- 
eousness of  his  cause ;  it  is  his  duty  to  argue,  and  not 
to  judge.  He  -has  no  more  right  to  say  that  his  client 
is  not  guilty  than  to  say  he  is  guilty.  A  counsel  in  a 
criminal  trial  who  expressed  his  personal  belief  in  the 
innocence  of  the  prisoner  would  be  guilty  of  a  rare 
departure  from  one  of  the  best  recognized  traditions 
of  the  bar.  Very  seldom  has  this  elementary  rule  of 
advocacy  been  broken  without  an  emphatic  protest  be- 
ing made.  When,  for  instance,  in  the  celebrated  Pal- 
mer Case,  in  England,  Sergeant  Shee  asserted  his  per- 
sonal belief  in  the  prisoner's  innocence,  Sir  Alexan- 
der Cockburn  rebuked  him  by  saying  that  he  l  i  had  bet- 
ter have  abstained  from  making  any  observations 
which  involved  the  assurance  of  his  own  conviction," 
and  condemned  the  expression  of  his  individual  opin- 
ion as  ll strange  and  unprecedented."  The  imperson- 
ality of  counsel  is  the  fundamental  principle  of  advo- 
cacy.1 

i  The  practical  effect  of  a  disregard  of  this  rule  of  ethics  was 
brought  out  conspicuously  in  a  criminal  trial  before  Mr.  Justice 


LEGAL  ETHICS.  269 

Whether  an  advocate  should  permit  himself  to  be  a 
witness  in  his  own  case  might  be  a  question  of  some 

Herrick,  of  the  Supreme  Court  of  New  York,  in  which  the  learned 
justice  in  his  charge  to  the  jury  severely  arraigned  both  the  counsel 
for  the  state  and  for  the  defendant  for  expressing  to  the  jury  their 
"personal  belief"  as  to  the  guilt  and  innocence,  respectively,  of  the 
accused.  Justice  Herrick  said:  "Perhaps  it  is  well,  gentlemen, 
before  we  come  to  consider  this  case,  to  brush  away  some  of  the 
things  that  have  no  business  in  it.  Each  counsel  that  you  have 
observed  here  has  proclaimed  hie  belief;  the  one  that  of  the  inno- 
cence of  his  client,  and  the  other  the  guilt  of  the  man  he  is  prose- 
cuting. You  will  not  take  that  into  consideration  for  a  moment.  It 
Is  a  grossly  unprofessional  thing  for  a  lawyer  to  state  to  a  jury  what 
his  belief  is.  Counsel  of  experience,  reputable  counsel,  never  in- 
dulge in  it.  These  gentlemen,  when  they  get  older  and  have  more 
experience  and  have  paid  more  attention  to  the  ethics  of  the  pro- 
fession, I  think,  will  not  indulge  in  that  sort  of  thing.  They  carry 
no  weight;  it  is  the  unsupported  statement  of  men.  They  are 
placing  themselves  for  credit  and  standing  in  the  community  be- 
fore you 'without  the  sanction  of  an  oath  that  any  witness  presents 
in  a  case.  You  have  no  right  to  consider  it  for  a  moment,  excepting 
as  an  indication  that  the  counsel  have  not  risen  to  the  best  stand- 
ing of  their  profession."  To  many  this  public  denunciation  of  the 
methods  of  counsel  in  this  case  will  be  considered  too  severe,  arid 
BO  it  may  be.  And  yet  it  cannot  be  doubted  that  it  will  be  a  whole- 
some lesson  to  the  attorneys  themselves  aa  well  as  to  others  who 
might  in  the  future  fall  into  this  same  error. 

The  sentiments  expressed  by  Hon.  George  F.  Hoar  in  a  recent 
article  in  referring  to  this  practice  are  very  pertinent.  He  says:  "It 
is  not  the  duty  of  an  advocate  nor  his  right  to  express  or  convey  his 
individual  opinion.  On  him  the  responsibility  of  the  decision  does 
not  rest.  He  not  only  has  no  right  to  accompany  the  statement  of 
his  argument  with  any  assertion  as  to  his  individual  belief,  but  I 
think  the  most  experienced  observers  will  agree  that  such  expres- 
sions, if  habitual,  tend  to  diminish  and  not  to  increase  the  just  in- 
fluence of  the  lawyer.  There  never  was  a  weightier  advocate  be- 
fore New  England  juries  than  Daniel  Webster.  Yet  it  is  on  record 
that  he  always  carefully  abstained  from  any  positiveness  of  asser- 
tion. He  introduced  his  weightiest  argument  with  such  phrases  as 
'It  will  be  for  the  jury  to  consider.'  'The  court  will  judge.'  "It  may, 
perhap,  be  worth  thinking  of,  gentlemen,'  or  some  equivalent  phrase 
by  which  he  kept  scrupulously  off  the  ground  which  belonged  to 
the  tribunal  he  was  addressing." 


270  AMERICAN    ADVOCACY. 

doubt  under  rare  circumstances.  So  far  as  the  law 
is  concerned  there  seems  to  be  no  objection  to  it.1 
However,  from  the  standpoint  of  professional  eti- 
quette, the  practice  is  to  be  sternly  discountenanced. 
If  it  be  necessary  for  an  attorney  to  appear  in  a  case 
as  a  witness  he  should  observe  the  proprieties  of  the 
situation  and  withdraw  as  an  advocate  unless  his  testi 
mony  is  intended  to  prove  a  mere  formality. 

§  192.  The  Advocate's  Relation  to  His  Client— The 
Supremacy  of  the  Client's  Interests.— The  association 
of  lawyer  and  client  is  as  confidential  as  that  between 
clergyman  and  penitent,  more  intimate  than  that  ex- 
isting between  doctor  and  patient.  It  requires  of  the 
attorney  not  a  surmise  concerning  the  rights  of  one 
soliciting  his  advice,  but  an  honest,  intelligent,  un- 
prejudiced opinion,  the  result  of  painstaking  examina- 
tion into  the  facts  and  the  law  applicable  to  the  par- 
ticular case,  even  though  the  lawyer  realizes  he  is 
counseling  against  his  own  pecuniary  interest.  He 
will  resolutely  abstain  from  hurrying  the  client  into 
doubtful  or  hopeless  litigation,  but  will  sink  beneath 
his  consideration,  himself,  his  ambition  for  fame,  his 
love  of  wealth,  his  eagerness  for  conflict,  and  hold 
tenaciously  before  him  only  his  client's  welfare.2 
When  once  he  has  undertaken  the  battle  for  another, 

i  Morgan  v.  Roberts,  38  111.  65;  Frear  v.  Drinker,  8  Pa.  St.  521. 


2  "An  attorney  at  law  ought  not  to  accept  a  retainer  in  a  case 
when  he  believes  that  the  law  is  against  his  client.  It  is  not  his 
duty,  in  order  to  subserve  the  interest  of  his  client,  to  misstate  the 
law  and  the  facts,  and  if  he  is  satisfied  that  the  client  cannot  re- 
cover, except  by  perversion  of  the  law  and  the  facts,  the  attorney 
ought  not  to  take  the  case."  Per  Beck,  J.,  in  Smith  v.  Railroad 
(Iowa),  15  N.  W.  Rep.  291. 


LEGAL  ETHICS.  271 

his  moral  duty  commands  that  he  bring  into  play  every 
resource  of  mind  and  heart,  leaving  no  legitimate  ar- 
gument untouched,  no  investigation  untried  and  that 
he  make  himself  master  of  the  situation. 

§  193.  The  Advocate's  Relation  to  His  Client— Is 
Truth  a  Higher  Obligation?— The  devotion  to  a  client's 
interests  never  obscures  the  advocate's  recognition  of 
a  higher  obligation  to  the  cause  of  truth.  If  he  be 
employed  by  one  who,  with  a  perverted  sense  of  right, 
asks  his  attorney  to  stoop  as  low  as  the  client  himself 
would  descend,  two  alternatives  are  open  to  the  lawyer 
of  integrity;  either  to  require  honesty  from  his  em- 
ployer or  to  withdraw  from  the  case.  Lord  Brougham 
maintained  that  an  advocate  should  consider  no  one 
except  his  client,  for  whom  he  must  be  reckless  of  con- 
sequences, resorting  to  all  means  and  expedients,  dis- 
regarding the  alarms,  the  torments,  the  destruction 
of  others,  and  even  bringing  confusion  upon  his  coun- 
try if  this  were  essential  to  success  ;*  but  a  far  higher 

i  The  extraordinary  language  used  by  Lord  Brougham  in  a  very 
celebrated  case,  which  has  misled  many  an  inexperienced  advocate, 
and  is  calculated  to  mislead  a  great  many  more,  to  the  danger  of 
their  unfortunate  clients  as  well  as  the  peril  of  their  own  prospects, 
is  as  follows: 

"There  are  many  whom  it  may  be  needful  to  remind  that  an  advo- 
cate— by  the  sacred  duty  of  his  connection  with  his  client — knows, 
in  the  discharge  of  that  office,  but  one  person  in  the  world — that 
client  and  none  other.  To  serve  that  client  by  all  expedient  means, 
to  protect  that  client  at  all  hazards  and  costs  to  all  others  (even  the 
party  already  injured),  and,  amongst  others,  to  himself,  is  the 
highest  and  most  unquestioned  of  his  duties.  And  he  must  not  re- 
gard the  alarm,  the  suffering,  the  torment,  the  destruction,  which 
he  may  bring  upon  any  others.  Nay,  separating  even  the  duties  of  a 
patriot  from  those  of  an  advocate,  he  must  go  on,  reckless  of  the 
consequences,  if  his  fate  should  unhappily  be  to  involve  his  country 
in  confusion  for  his  client." 

Although  some  of  the  terms  of  this  sweeping  proposition  might  be 


272  AMERICAN    ADVOCACY. 

plane  of  professional  conduct  was  reached  by  the  late 
Charles  T.  Russell,  of  Massachusetts,  of  whom  it  was 
said  that,  when  retained  by  a  client  who  had  no  con- 
science, Eussell  gave  him  one.  Thus  will  it  be  with 
every  barrister  who,  in  assuming  the  responsibilities 
of  his  calling,  remembers  his  duty  as  a  man. 

So,  also,  is  truth  not  only  a  higher  obligation  but  a 
more  profitable  course  as  well  in  answering  the  argu- 
ments or  evidence  of  one's  opponent.  What  is  the 
use  of  an  advocate  endeavoring  to  prejudice  the  cause 
of  his  opponent  by  saying,  "Gentlemen,  I  don't  say 

assented  to,  and  especially  in  the  circumstances  which  gave  them 
utterance,  there  is  surely  much  that  an  honorable  man  would  shrink 
from,  even  though  he  gave  full  scope  to  the  meaning  of  the  word 
"expedient."  In  the  impetuosity  of  advocacy  such  as  Brougham  was 
stirred  up  by  the  occasion  to  ehiploy,  it  might  have  been  excusable 
to  use  such  language;  but  if  it  be  examined  its  propositions  can 
scarcely  be  assented  to. 

An  advocate  can  hardly  claim  a  higher  privilege  than  his  client 
could  claim  for  himself  were  he  defending  his  own  cause.  Would 
he  be  permitted  to  disregard  the  suffering,  the  torment,  the  destruc- 
tion which  he  might  bring  upon  others?  And  under  what  circum- 
stances could  the  expediency  of  bringing  down  such  overwhelming 
calamities  arise?  If  it  could  never  be  expedient,  all  the  rest  of  the 
sentence,  with  its  catalogue  of  evils,  might  have  been  left  out.  If  it 
could  be  expedient,  when? 

An  advocate  should  be  tender  of  the  feelings  of  others,  although 
engaged  in  the  "sacred  duty  of  his  connection  with  his  client;"  and 
above  all  things,  he  ought  to  be  the  guardian,  and  not  the  destroyer, 
of  private  character;  he  should  observe  the  golden  rule  of  "doing 
unto  others  as  he  would  be  done  by,"  nor  should  he  lose  or  suspend 
the  feelings  of  a  Christian  and  a  gentleman;  he  should  regard  "the 
alarm,  the  suffering,  the  torment,  the  destruction  which  he  may 
bring  upon  others."  "To  serve  his  client"  may  be  "his  highest  duty 
as  an  advocate,"  but  it  is  yet  hoped  it  would  not  cause  him  to  forget 
his  duties  as  a  man,  or  prevent  him  from  abandoning  a  cause  which 
he  can  only  win  by  dishonorable  means.  -  Besides  this,  an  advocate 
who  casts  destruction  broadcast  may  involve  his  client  in  the  gen- 
eral ruin,  and  is  sure  in  any  event  to  injure  him  in  the  estimation 
of  the  jury. 


•LEGAL  ETHICS.  273 

that  the  defendant  has  obtained  these  goods  by  false 
pretenses,  but  I  say  his  mode  of  dealing  will  not  com- 
mend itself  to  your  minds?"  This  is  a  trick — an  im- 
poverished one,  it  is  true;  but  so  would  every  other 
trick  seem  if  we  were  to  write  it  down.  Look  at  the 
following:  "I  don't  think  much  of  such  and  such  a 
transaction,  or  the  fact  that  the  defendant  did  or  said 
so  and  so.  I  merely  call  your  attention  to  it  in  pass- 
ing." These  are  devices  which  do  not  approach  to  the 
pretensions  of  art,  and  are  unworthy  of  a  good  speak- 
er. They  are  not  the  truth — not  the  words  of  sincer- 
ity; and  when  an  advocate  has  neither  truth  nor  sin- 
cerity, although  he  may  have  acting,  he  cannot  have 
the  highest  and  best  speaking.  Truth  and  sincerity 
are  among  the  charms  and  graces  of  eloquence,  and 
they  are  the  power  that  stirs  and  impresses  an  audi- 
ence. It  must  not  be  understood  that  there  are  not  two 
ways  of  presenting  a  sound  proposition  or  an  incon- 
trovertible argument.  Truth  and  sincerity  themselves 
may,  in  an  uncultured  and  inartistic  speaker,  be  made 
to  look  absolutely  offensive,  and  not  only  to  look  so, 
but  to  be  so.  Therefore  it  is  necessary,  if  an  advocate 
would  impress  his  hearers,  that  art  should  come  to  the 
aid  of  reason ;  the  same  idea  and  the  same  truth  may 
be  conveyed  in  coarse  as  veil  as  cultured  language. 
One  need  not  say  in  which  it  will  be  transmitted  most 
effectively;  but  the  tricks  referred  to  are  apart  from 
both,  and  partake  more  of  the  style  appropriate  to 
the  conjurer  at  a  fair  than  to  an  advocate  speaking  at 
the  bar.  Nothing,  therefore,  contributes  so  powerful- 
ly to  the  success  of  a  lawyer  as  a  reputation  for  ver- 
acity and  straightforwardness.  Let  the  court  and 
jury  come  to  suspect  that  the  advocate  has  a  serious 
impediment  in  his  veracity;  in  other  words,  let  them 

18 


274  AMERICAN     ADVOCACY. 

once  lose  confidence  in  him  as  a  man,  in  his  word  and 
in  his  sincerity,  and  he  might  just  as  well  sit  upon  the 
counsel  table  and  fiddle  for  that  court  and  jury  as  to 
talk  to  them.  No  matter  how  profound,  no  matter  how 
sound,  no  matter  how  logical,  no  matter  how  powerful 
otherwise  his  argument  may  be,  it  will  be  vain;  and 
his  adversary,  if  he  be  a  man  in  whom  the  court  and 
jury  have  confidence,  who  has  so  deported  himself  in 
his  practice  that  they  believe  him  to  be  an  honest,  sin- 
cere and  truthful  man,  has  a  vast— it  may  be  an  over- 
powering— advantage  of  him. 

§  194.  The  Advocate's  Relation  to  His  Client— De- 
fending One  Whom  the  Advocate  Believes  to  Be 

Guilty.— Whether  the  attorney  may  undertake  the  suit 
of  one  whom  he  believes  to  be  in  the  wrong,  is  a  ques- 
tion not  admitting  of  an  unqualified  answer.  If  he  be 
called  upon  to  defend  a  criminal  who  privately  con- 
fesses to  the  commission  of  the  offense,  he  may  still 
accept  the  employment  with  a  clear  conscience,  in- 
forming his  client  that  he  will  oppose  all  unwarranted 
attacks  and  will  see  that  no  injustice  is  done  the  ac- 
cused. Even  the  hunted  beast  has  some  rights  in  the 
chase,  and  guilty  men  must  be  convicted  by  the  law, 
not  in^ defiance  of  it;  otherwise  gross  wrong  is  com- 
mitted to  attain  a  right  result.  Nor  can  counsel  al- 
ways be  assured  that  the  confessed  murderer  is,  in 
fact,  guilty.  Mental  derangement,  a  mistake  of  facts, 
the  coercion  of  another,  a  desire  to  draw  on  himself 
the  punishment  justly  due  to  a  friend  or  a  relative, 
may  render  the  confession  worthless.  The  counsel  is 
not  to  establish  himself  as  a  court  for  the  trial  of 
every  man's  case,  for  the  law  presumes  innocence  and 
not  guilt.  Its  indulgence  to  the  culprit  declares  that 


LEGAL  ETHICS.  275 

even  the  judge  shall  be  his  advocate,  but  it  does  not 
permit  his  advocate  to  be  his  judge.1 

§  195.  The  Advocate's  Relation  to  His  Client— Be- 
coming a  Party  to  a  Fraud,  or  Maintaining  Harassing 
or  Oppressive  Litigation.— Very  different  is  it  where 
the  maintenance  of  his  side  of  the  controversy  in- 
volves a  reliance  upon  forged  documents,  perjured 
testimony,  the  enforcement  of  a  fraudulent  claim,  the 
concealment  of  property  from  lawful  creditors,  or  the 

i  Laymen  not  infrequently  charge  the  lawyer  very  unjustly  for 
permitting  his  services  to  be  retained  in  defending  some  noted 
criminal  toward  whom  the  public  mind  is  wildly  inflamed  and 
whom  he  may  believe  to  be  guilty.  It  has  been  a  difficult  task  of 
the  profession,  in  standing  up  for  its  privileges  and  duty  in  this  re- 
gard, to  convince  the  public  that  no  lawyer  has  the  right  to  injure 
his  fellowman's  defense  by  judging  his  case  without  trial.  No  bet- 
ter argument  has  ever  been  advanced  than  that  offered  by  Lord 
Erskine  in  vindicating  him&elf  from  the  public  odium  which  attached 
to  him  by  reason  of  his  defense  of  Thomas  Paine.  The  great  bar- 
rister said: 

"In  every  place  where  business  or  pleasure  collects  the  public  to- 
gether day  after  day,  my  name  and  character  have  been  the  topic  of 
injurious  reflection.  And  for  what?  Only  for  not  having  shrunk 
from  the  discharge  of  duty  which  no  personal  advantage  recom- 
mended, and  which  a  thousand  difficulties  repelled.  *  *  *  Little, 
indeed,  did  they  know  me,  who  thought  that  such  calumnies  would 
influence  my  conduct.  /  will  forever,  at  all  hazards,  assert  the  dig- 
nity, independence  and  integrity  of  the  English  bar,  without  which 
impartial  justice,  the  most  valuable  part  of  the  English  constitu- 
tion, can  have  no  existence.  From  the  moment  that  any  advocate 
can  be  permitted  to  say  that  he  will  or  will  not  stand  between  the 
crown  and  the  subject  arraigned  in  the  court  where  he  daily  sits  to 
practice,  from  that  moment  the  liberties  of  England  are  at  an  end. 
If  the  advocate  refuses  to  defend  from  what  he  may  think  of  the 
charge  or  of  the  defense,  he  assumes  the  character  of  the  judge — 
nay,  he  assumes  it  before  the  hour  of  judgment;  and  in  proportion 
to  his  rank  and  reputation,  puts  the  heavy  influence  of  perhaps  a 
mistaken  opinion  in  the  scale  against  the  accused,  in  whose  favor 
the  benevolent  principle  of  -English  law  makes  all  presumptions, 
and  which  commands  the  very  judge  to  be  his  counsel." 


276  AMERICAN     ADVOCACY. 

collection  of  a  debt  already  paid  in  full  to  his  client. 
Here,  instead  of  acting  as  a  faithful  keeper  of  his  cli- 
ent's conscience,  the  advocate  is  expected  to  become 
a  party  to  a  positive  wrong,  and  no  professional  re- 
quirement constrains  him  thus  to  compromise  himself. 
Not  squeamishly,  but  with  rugged  honesty,  he  must 
decide  in  every  case  whether  the  side  soliciting  his 
assistance  is  so  palpably  unjust  that  no  reasonable 
man  would  hesitate  to  stigmatize  it,  or  whether  there 
may  be  a  debatable  question  upon  the  merits  of  the 
cause. 

Nor  is  an  attorney  under  obligations  to  minister  to 
the  malevolence  or  prejudices  of  a  client  in  the  trial 
or  conduct  of  a  cause.  He  is  therefore  expected  in  a 
civil  cause  to  decline  to  conduct  a  prosecution  when 
satisfied  that  the  purpose  is  merely  to  harass  or  in- 
jure the  opposite  party,  or  to  work  oppression  and 
wrong.  Nor  is  he  to  abuse  the  process  of  the  court  in 
order  to  compel  a  settlement  of  a  demand.1  Nor 

i  An  interesting  illustration  of  the  frequent  violation  of  this  rule 
is  given  by  Mr.  Warvelle  in  his  excellent  work  entitled  "Essays  in 
Legal  Ethics,"  at  p.  125: 

"The  matter  under  discussion  finds  frequent  examples  in  connec- 
tion with  justice  courts  and  other  tribunals  of  limited  jurisdiction. 
Thus,  the  law  gives  to  justices  of  the  peace  a  concurrent  jurisdic- 
tion throughout  the  country.  This  fact  is  frequently  taken  advant- 
age of  by  unscrupulous  practitioners  to  harrass  and  annoy  persons 
against  whom  they  may  have  demands,  and  process  is  issued  and 
made  returnable  at  distant  parts  of  the  county  and  at  inconvenient 
hours.  It  often  happens-,  in  such  cases,  if  the  defendant  answers 
the  summons,  that  the  plaintiff  fails  to  appear,  and  the  case  is  dis- 
missed, only  to  be  commenced  again  in  the  same  manner,  and  is  so 
continued  until  finally  a  'snap'  judgment  Is  entered  by  default.  This 
is  distinctly  an  abuse  of  process,  a  rank  perversion  of  the  machinery 
of  the  law,  and  a  degradation  of  judicial  functions,  but  while  it  vio- 
lates the  canons  of  ethics  it  infracts  no  legal  rule,  and  the  remedy, 
therefore,  lies  only  in  the  forum  of  conscience." 


LEGAL  ETHICS.  277 

should  he  take  a  case  which  presents  an  opportunity 
to  take  advantage  of  the  defenseless  or  oppress  those 
in  financial  disaster.1 

§  196.  The  Advocate's  Relation  to  His  Client— Use 
of  Improper  Methods  or  Influences.— The  services 
which  an  advocate  has  for  sale  are  legal,  not  moral 
nor  social.  It  is  highly  unethical  for  an  advocate  to 
sell  his  political,  moral  or  personal  influence  in  a  com- 
munity and  labef  it  legal  services.  If  he  desire  to  sell 
such  influences,  let  him  leave  the  profession  of  the 
law  and  become  a  lobbyist,  a  go-between  or  a  promoter 
of  any  and- all  kinds  of  schemes,  but  let  him  not  dis 
grace  by  such  methods  a  profession  which  exists  only 
for  the  purpose  of  enforcing  the  law  and  whose  only 
methods  of  offense  and  defense  are  reason  and  justice. 

i  "An  attorney  who  will  take  advantage  of  a  defenseless  woman, 
say  a  woman  in  straitened  circumstances,  or  oppress  the  fatherless, 
or  'grind  the  faces  of  the  poor,'  for  the  sake  of  lining  his  own  purse, 
has  no  pretense  for  his  practices,  either  in  law  or  in  equity.  Such 
conduct  is  iniquitous  and  disreputable.  The  law  is  dishonored  by 
such  officers."  W.  E.  Glanville,  Ph.  D.,  in  8  Green  Bag,  p.  209. 

An  incident  from  the  life  of  Abraham  Lincoln  serves  as  an  appro- 
priate illustration  of  the  rule  of  ethics  now  under  consideration.  A 
.stranger  called  on  Lincoln  and  desired  to  retain  his  services. 

"State  your  case,"  said  Mr.  Lincoln.  The  man  did.  Then  Lincoln 
said: 

"I  cannot  serve  you,  for  you  are  wrong  and  the  other  fellow 
right." 

"That  is  none  of  your  business  if  I  hire  you,"  retorted  the  stranger. 

"None  of  my  business!"  exclaimed  Lincoln.  "My  business  is 
never  to  defend  wrong.  I  never  take  a  case  that  is  manifestly 
wrong." 

"Well,  but  you  can  make  trouble  for  the  other  fellow,"  the 
stranger  insisted. 

"Yes,"  replied  Lincoln,  "I  can  set  a  whole  community  at  log- 
gerheads. I  can  make  trouble  for  this  widow  and  her  fatherless 
children,  and  thereby  get  you  $600  which  as  rightfully  belongs  to 
the  woman  as  it  does  to  you.  But  I  won't  do  it." 


278  AMERICAN     ADVOCACY. 

Of  course,  an  attorney  may,  openly  and  in  his  true 
character,  render  purely  professional  services  before 
committees  regarding  proposed  legislation,  and  in  ad- 
vocacy of  claims  before  departments  of  the  govern- 
ment, upon  the  same  principles  of  ethics  which  justify 
his  appearance  before  the  courts;  but  it  is  immoral 
and  unethical  for  an  attorney  so  engaged  to  conceal 
his  attorneyship,  or  to  employ  secret,  personal  solici- 
tations, or  to  use  means  other  than  those  addressed  to 
the  reason  and  understanding,  to  influence  action.1 

§  197.  The  Advocate's  Relation  to  His  Profession- 
General  Considerations.— Nothing  should  be  higher  in 
the  estimation  of  the  advocate,  next  after  those  sacred 
relations  of  home  and  country,  than  his  profession. 
She  should  be  to  him  the  " fairest  of  ten  thousand" 
among  the  institutions  of  the  earth.  He  must  stand 
for  her  in  all  places  and  resent  any  attack  on  her  hon- 
or as  he  would  if  the  same  attack  were  to  be  made 
against  his  own  fair  name  and  reputation.  He  should 
enthrone  her  in  the  secret  places  of  his  heart,  and  to 
her  he  should  offer  the  incense  of  constant  devotion. 
For  she  is  a  jealous  mistress. 

That  this  is  not  mere  sentiment  is  evidenced  by  the 
successful  careers  of  the  world's  greatest  lawyers,* 

i  In  March,  1904,  the  United  States  District  Court,  sitting  at  St. 
Louis,  imposed  the  severest  penalty  ever  imposed  for  an  offense  of 
this  character.  The  convicted  man  was  United  States  Senator  Bur- 
ton, and  his  offense  was  a  violation  of  Sec.  1781,  Rev.  Stat.  U.  S.. 
which  provides  that  "every  member  of  congress  who,  directly  or 
indirectly,  takes  or  receives  any  money,  property,  or  other  valuable 
consideration  from  any  person  for  procuring,  or  aiding  to  procure, 
any  contract  *  *  *  from  the  government,  or  any  department 
thereof,  shall  be  punished,  etc."  This  statute  is  merely  a  declara- 
tion of  the  unwritten  code  of  legal  ethics,  which  the  people  have 
put  into  statute  form  for  the  purpose  of  more  probable  and  certain 
punishment. 


LEGAL  ETHICS.  279 

who  were  invariably  the  most  enthusiastic  devotees 
of  their  profession's  honor  and  esprit  de  corp.  In- 
deed, the  advocate  who  starts  out  in  his  professional 
life  as  a  free  lance  with  the  idea  that  he  will  have  noth- 
ing to  do  with  his  professional  brethren  except  as 
necessity  or  business  compels  him;  who  takes  up  his 
profession  as  some  merchants  run  their  business,  with 
the  idea  that  all  his  brother  lawyers  are  his  competi- 
tors, and  therefore  his  enemies,  to  be  underrated  at 
every  opportunity  and  to  be  antagonized  at  all  times, 
is  assured  of  an  abject  and  dismal  failure.  The  con- 
tempt of  his  own  profession  will  drive  every  decent 
client  from  his  office.  No  client  desires'  for  his  advo- 
cate one  whom  the  courts  and  his  own  profession  re- 
gard disdainfully  and  to  whom,  therefore,  they  do  not 
care  to  show  any  courtesies  which  the  law  does  not 
strictly  compel  them  to  extend. 

Moreover,  it  is  to  the  interest  of  lawyers  to  stand 
together.  In  so  many  particulars  are  their  duties  and 
obligations  reciprocal.  Indeed,  one  advocate  who  has 
the  opportunity  to  extend  a  favor  to  another  advocate 
to-day  may  be  compelled  to  request  the  other  advocate 
to  reciprocate  to-morrow.  Besides,  nothing  is  so 
profitable  and  encouraging  as  the  mutual  interchange 
of  experiences  and  the  friendly  exchange  of  brotherly 
greetings  by  attornevs,  who  may  have  for  the  moment 
been  on  opposite  sides  of  a  bitter  controversy.  Let  the 
attorney,  therefore,  in  all  that  he  does,  never  forget  to 
keep  the  honor  of  his  profession  unsullied,  and  to  con- 
stantly strive  to  win  the  respect  and  confidence  of  his 
professional  brethren. 

Moreover,  the  Canons  of  Professional  Ethics  re- 
quire the  lawyer  to  become  responsible  for  the  non- 
partisanship  the  high  intelligence  and  integrity  of  the 


280  AMERICAN     ADVOCACY. 

judiciary  and  to  secure  reforms  in  the  law  administer 
ing  the  course  of  justice  in  the  courts  and  in  stimulat- 
ing public  confidence  in  the  judiciary.  All  these  duties 
require  the  co-operation  of  all  other  members  of  the 
profession  for  their  successful  accomplishment.  For 
this  reason,  bar  associations  are  organized  in  states 
and  local  communities  and  it  therefore  clearly  becomes 
the  duty  of  a  lawyer  seeking  an  honorable  standing  in 
his  profession,  to  co-operate  with  such  associations 
in  their  many  laudable  professional  enterprises.  A 
lawyer,  rich  or  poor,  high  or  low,  who  deliberately 
withdraws  himself  from  association  with  his  profes- 
sional brethren  in  his  local  or  state  bar  associations 
can  hardly  square  his  conduct  in  such  respect  with  the 
present  requirements  of  the  Canons  of  Professional 
Ethics. 

§  198.  The  Advocate's  Relation  to  His  Profession- 
Attitude  Towards  Opposing  Counsel.— Toward  oppos- 
ing counsel  the  advocate's  attitude  should  be  courteous 
but  unflinching,  generous  but  not  reckless  in  granting 
favors.  He  will  avoid  all  personality  so  far  as  pos- 
sible, never  breaking  into  his  opponent's  address  to 
the  court  or  jury  except  when  he  is  grossly  misstating 
facts  or  misrepresenting  him,  and  always  dealing  fair- 
ly with  his  opponent's  arguments.  He  should  never 
enter  upon  a  trial  supposing  his  adversary  to  be  a 
fool,  but  rather  overestimate  his  ability.  This  should 
serve  to  stimulate,  not  to  embarrass,  his  faculties. 
Whatever  may  be  the  riot  of  unrest  within  his  bosom, 
he  must  bear  a  front  as  calm  and  inscrutable  as  if  the 

• 

day  were  already  his. 

If  our  advocate  is  asked  by  his  adversary,  or  the  lat- 
ter's  attorney,  to  state  what  he  knows  of  a  particular 
transaction,  what  will  be  his  evidence,  who  are  his  wit- 


LEGAL  ETHICS.  281 

nesses,  whether  a  certain  document  is  in  existence  or 
what  are  its  contents,  or  whether  any  of  the  jury  are 
his  clients,  he  must  decline  to  answer  at  all  or  reply 
truly.  The  request  may  be  unjustifiable,  but  this  will 
not  permit  a  false  statement,  upon  which  the  other 
will  probably  rely.  Nor  will  the  barrister  be  too  ready 
to  grant  every  favor  which  his  brother  lawyer  may 
suavely  ask  at  his  hands;  his  complaisance  becomes 
teachery  if  he  admits  away  substantial  portions  of  his 
client's  cause  upon  the  assurance  that  the  favor  is 
merely  formal.  But  if  he  promises  to  concede  a  for- 
mal point,  to  furnish  his  opponent  a  list  of  his  authori- 
ties before  the  trial,  or  to  agree  to  a  continuance  of 
the  suit,  he  falls  to  the  level  of  a  common  deceiver  if 
he  fails  to  perform  his  agreement  to  the  letter. 


CHAPTER  XVI. 

COMPENSATION  AND  ADVERTISING. 


§199.  Compensation    •   -    General 
Considerations. 

200.  Compensation  — Regulating 

the  Amount  of  the  Fee. 

201.  Compensation  Contin- 

gent Fees. 

202.  Compensation  —  When  an 

Advocate  May  Contract 
for  His  Services  on  a 
Salary  Basis. 

203.  Advertising  General 

Considerations. 

204.  Advertising   -  -   Legal     Di- 

rectories and  Newspa- 
per Notoriety. 

205.  Advertising  —  Divorce  Ad 

vertising. 

206.  Advertising  —  Politics    as 

an  Advertising  Me- 
dium. 


§207.  Advertising  —  Social  Ac- 
quaintance and  Club 
Life. 

208.  Advertising  --  Pretending 

to  be  Learned  or 
Whelmed  with  Busi- 
ness. 

209.  Advertising  Employ- 

ment of  Runners. 

210.  Advertising — "Buying    Up" 

Causes  of  Action. 

211.  Advertising — Stealing    An- 

other Attorney's  Prac- 
tice. 

212.  Advertising— Office     Furni- 

ture and  Modern  Busi- 
ness Methods. 

213.  Advertising  —  The    Final 

Test  of  Advertising 
Methods. 


§  199.  Compensation— General  Considerations.— Ad- 
vocates just  starting  into  practice  and  compelled  to 
grasp  at  every  straw  for  a  livelihood,  are  impatient  at 
any  suggestion  that  there  is  a  limitation  on  their  right 
to  contract  for  their  services.  This  impatience  dis- 
appears when  he  is  reminded  that  in  practice  they  are 
not  irksome  and  serve  not  only  to  dignify  the  profes- 
sion but  to  win  the  confidence  of  the  people. 


COMPENSATION  AND  ADVERTISING.  283 

In  the  first  place,  as  to  the  "honorarium."  The  hon- 
orarium is  the  name  given  to  fees  paid  to  advocates 
in  the  early  English  practice  and  which  still  obtains, 
in  name  at  least,  in  England  to-day.  The  honorarium 
is  a  gratuitous  fee.  At  the  very  early  common  law 
when  the  only  advocates  were  clericals,  the  service 
rendered  by  the  local  priest  or  monk  was  considered 
a  pious  duty  on  his  part  and  was  rewarded  by  a  gift 
which  the  giver  paid,  not  as  compensation  to  the  ad- 
vocate but  as  an  honorable  thing  to  do  on  his  part. 
This  practice  has  continued  down  to  the  present  day 
in  England,  but  never  obtained  a  foothold  in  this 
country,  probably  because  of  our  practice  in  uniting 
the  office  of  barrister  and  solicitor  in  the  same  indi- 
vidual. In  this  country,  therefore,  the  profession  rec- 
ognizes the  principle  that  "the  laborer  is  worthy  of 
his  hire,"  and  that  if  it  is  desirable  to  have  a  trained 
legal  profession,  the  devotees  must  be  compensated 
for  the  years  of  study  and  training  necessary  to  per- 
fect themselves  for  its  practice.1 

There  is  one  exception  to  the  modern  rule  that  an 
advocate  is  entitled  to  compensation  for  his  services, 
i.  e.,  when  he  is  assigned  by  the  court  to  conduct  the 
defense  of  an  indigent  prisoner.  The  advocate  has 
in  such  a  case  the  right  to  recover  neither  from  the 
prisoner,  who  did  not  contract  to  employ  him,  nor 
from  the  county,  who  expects  him  to  render  such  ser- 
vices as  an  officer  of  the  court  in  return  for  the  privi- 

i  "The  flimsy  pretext  of  an  honorarium  has  a  nominal  existence 
in  every  case,  may  demand  and  enforce  such  remuneration  as  shal 
compensate  him  for  the  time  and  labor  actually  expended,  and  in 
fixing  the  amount  of  such  remuneration  the  preliminary  prepara- 
tion for  the  assumption  of  professional  duties  is  a  proper  factor. 
Without  this  the  profession  of  advocacy  could  not  be  maintained  in 
this  country."  Warvelle's  Essays  in  Legal  Ethics,  p.  75. 


284  AMERICAN     ADVOCACY. 

leges  which  the  state  gives  him  to  practice  his  pro- 
fession.1 

§  200.  Compensation— Regulating  the  Amount  of 
the  Fee.— A  lawyer's  fee  is  the  most  uncertain  thing  in 
the  world.  It  bears  some  resemblance  to  a  woman's 
fickleness  and,  like  it,  has  been  the  butt  of  much  ridi- 
cule and  sarcasm.  No  lawyer  ever  attempts  to  apply 
any  hard  and  fast  rules  in  such  matters.  It  all  de- 
pends, as  the  courts  would  say,  on  the  circumstances 
of  the  particular  case.  It  might  also  be  said  to  de- 
pend on  the  "circumstances"  of  the  client;  whether 
he  be  in  good  or  poor  circumstances  has  very  often  con- 
siderable to  do  with  estimating  the  value  of  the  attor- 
ney's services. 

The  young  advocate  makes  a  serious  mistake  by 
starting  out  in  a  spirit  of  bravado,  and  charging  fees 
which,  while  reasonable  in  an  old  practitioner,  are 
ridiculous  in  the  case  of  one  without  experience. 
Business  is  generally  thrown  to  the  young  practition- 
er by  friends,  or  as  "feelers"  by  business  men,  or  as 
"too  insignificant"  by  busier  lawyers,  or  the  prospec- 
tive client  is  very  poor.  In  every  one  of  these  cases 
there  is  absolutely  no  reason  or  justification  for  a 
lawyer  to  charge  what  he  may  term  "an  honorable  and 
respectable  fee."  Indeed,  most  of  this  business  will 
hardly  pay  even  a  retainer,  and  the  young  lawyer  will 
probably  be  asked  to  take  it  on  a  contingent  fee.  If 
he  be  wise  he  will  encourage  professional  compensa- 
tion on  such  a  basis,  as  agreements  for  contingent  com- 
pensation are  to-day  perfectly  legitimate  and  ethical 
and  will  net  him  larger  returns  than  if  he  exacts  a  cer- 
tain cash  retainer  in  advance.  Clients,  also,  will  feel 

i  Johnson  v.  Whiteside  County,  110  111.  22. 


COMPENSATION  AND  ADVERTISING.  285 

more  willing  to  engage  his  services  on  this  basis,  and 
thus  he  increases  his  business  as  well  as  his  oppor- 
tunities for  getting  before  the  public  and  for  proving 
his  ability  as  a  trial  lawyer. 

The  only  safe  and  wise  rule,  therefore,  is  to  begin 
by  low  fees  to  encourage  business  and  gauge  the 
charges  of  various  clients,  not  on  a  basis  of  the  exact 
time  or  service  rendered,  but  in  proportion  to  the  abil- 
ity of  the  client  to  pay  and  the  benefit  derived  from 
his  services.  Of  course,  he  should  not  cheapen  his 
practice  too  much.  Unless  on  a  contingent  basis,  he 
probably  should  not  charge  less  than  five  dollars  for 
any  legal  service.  This,  of  course,  does  not  include 
fees  for  notarial  services.  If  a  client  is  stubborn,  and 
inclined  to  contest  and  quarrel  over  what  is  really 
only  a  reasonable  fee,  the  young  lawyer  will  probably 
do  well  to  firmly  dismiss  the  inquirer  from  his  pres- 
ence without  argument,  as  he  will  probably  be  an  un- 
profitable client.  Indeed,  it  might  raise  him  a  little  in 
the  eyes  of  the  inquirer  to  say:  "Oh  yes,  certainly, 
you  can  hire  such  lawyers,  but  I  am  too  busy  at  pres- 
ent to  take  very  low-priced  practice."  Still,  with  this 
one  exception,  the  young  lawyer  must  remember  the 
proposition  with  which  we  opened  this  paragraph — he 
must  be  fair  and  tactful  with  his  clients  in  the  matter 
of  compensation,  never  driving  them  away  by  over- 
charging. Later  on,  when  his  reputation  is  made  and 
his  ability  proven,  the  matter  of  fees  will  trouble 
neither  him  nor  his  clients,  as  among  the-  better  class 
of  clients  there  is  rarely  ever  any  argument  over  the 
amount  of  a  fee. 

Very  often  associations  of  commercial  lawyers,  and 
sometimes  even  local  bar  associations,  attempt  to 
regulate  the  charges  for  various  services  to  be  ren- 


286  AMERICAN     ADVOCACY. 

dered.  An  advocate  who  directly  or  indirectly  agrees 
to  such  regulations  is  bound  by  them,  and  would  very 
seriously  offend  the  ethics  of  the  profession  were  he 
to  disregard  such  regulations.1 

§  201.  Compensation— Contingent  Fees.— At  a  time 
when  the  honor  of  the  profession  of  law  was  more 
prominent  than  its  business  aspect,  the  practice  of 
taking  contingent  fees  was  frowned  upon  and  placed 
the  offender  in  a  lower  and  more  dishonorable  strata 
of  practitioners.  Gradually,  however,  the  justice  and 
necessity  of  such  contracts  in  certain  instances  have 
been  generally  recognized,  although  courts  and  laymen 
seem  to  still  view  them  with  suspicion. - 

1  "Sometimes  bar  associations  prescribe  rules  with  respect  to  the 
compensation  to  be  charged  by  their  members  for  certain  kinds  oi: 
service  and  the  conditions  under  which  such  service  shall  be  ren- 
dered.    *     *     *     As  between  the  members  of  the  association  the 
rules   would   be   binding,   as   they   would   also   be   with   respect   to 
others  who  assent  to  them,  but,  in  the  absence  of  such  assent,  the 
right  to  recover  for  services  must  be  determined  and  the  amount 
of  such  recovery  ascertained  by  the  general  law  and  not  by  the 
rules  of  the  bar."    Warvelle's  Essays  in  Legal  Ethics,  p.  87,  citing 
Boylan  v.  Holt,  45  Miss.  277. 

2  "It  is  contended  that  if  a  person  could  not  secure  counsel  by  a 
promise  of   large  fees  in  case  of  success,  to  be  derived  from  the 
suject-matter  of  the  suit,  it  would  often  place  the  poor  in  such  a 
condition  as  to  amount  to  a  practical  denial  of  justice.    It  not  infre- 
quently happens  that  persons  are  injured  through  the  negligence 
or  willful  misconduct  of  others,  but  who  yet,  by  reason  of  poverty, 
are  unable  to  employ  counsel  to  assert  their  rights.     In  such  event 
their  only   means  of  redress  lies   in  gratuitous   service,   which   is 
rarely  given,  or  in  their  ability  to  find  some  one  who  will  conduct 
the   case   for   a   contingent   fee.     That   relations   of   this   kind   are 
often  abused  by  speculative  attorneys,  or  that  suits  of  this  char- 
acter are  turned  into  a  sort  of  commercial  traffic  by  the  "personal 
injury"  lawyer,  does  not  destroy  the  beneficent  idea  last  discussed. 
So  it  will  be  seen  that  much  can  be  said  in  favor  of  contingent  fees, 
viewed  solely  from  an  ethical  standpoint."     Warvelle's  Essays  in 
Legal  Ethics,  p.  92. 


COMPENSATION  AND  ADVERTISING.  287 

The  contingent  fee  is  purely  a  wild  growth;  it 
knows  neither  rules  nor  limitations.  There  is  neither 
definiteness  nor  certainty  about  it.  "If  you  lose,  I 
get  nothing;  if  you  win,  you  get  nothing,"  was  the 
well-known  definition  of  a  certain  lawyer  who  was 
asked  by  a  client  to  explain  to  him  the  meaning  of  the 
word.  While  there  is  much  exaggeration  in  this  defini- 
tion, it  sufficiently  expresses  the  idea  that  the  attor- 
ney's compensation  in  this  class  of  cases  is  not  based 
on  any  consideration  of  the  real  value  of  the  ser- 
vices of  the  attorney  to  his  client,  but  is  rather  a  joint 
speculation  where  one  puts  in  his  claim  and  the  other 
his  services  with  an  agreement  to  share  in  the  result 
at  a  certain  ratio. 

We  have  no  intention  at  this  time  to  enter  into  the 
question  of  the  validity  of  agreements  for  contingent 
compensation  nor  to  discuss  the  circumstances  under 
which  they  may  be  said  to  become  champertous.  It 
is  sufficient  to  say  that  the  rule  sustained  by  the  great 
weight  of  American  authority  is  to  the  effect  that  a 
contract  between  the  attorney  and  his  client  for  a 
contingent  fee  is  not  necessarily  invalid.  All  the  law 
will  do  in  such  case  is  to  scrutinize  the  transaction, 
and  see  that  it  is  fair,  and  that  no  unfair  advantage 
has  been  taken  either  of  the  necessities  or  the  ignor- 
ance of  the  client.1 

But  when  will  the  law  say  that  a  contingent  fee 
stipulated  for  is  unconscionable?  The  general  rule  is 
that  a  contract  by  an  attorney  for  the  prosecution  of 
a  claim  for  a  contingent  fee  is  not  void,  unless  it  ap- 
pear that  the  agreement  was  clearly  extortionate,  or 

i  Chester  County  v.  Barber,  97  Pa.  St.  455;  Taylor  v.  Bemis,  110 
U.  S.  42,  3  Sup.  Ct.  Rep.  44;  Perry  v.  Dicken,  105  Pa.  St.  83,  51 
Am.  Rep.  181. 


288  AMERICAN     ADVOCACY. 

that  the  attorney  has  taken  an  undue  advantage  of  his 
client.1 

In  the  recent  case  of  Herman  v.  Metropolitan  Street 
Kailway  Company,  however,  the  court  attempts  to 
make  the  rule  more  definite  by  setting  a  limit  to  the 
percentage  which  may  be  agreed  upon.  In  the  case  re- 
ferred to,  which  was  decided  by  the  United  States  Cir- 
cuit Court  (Second  Circuit),2  Judge  Lacombe  holds  that 
an  agreement  to  accept  a  contingent  fee  of  fifty  per  cent 
is  unconscionable  in  an  ordinary  accident  case. 

The  authorities  on  this  question  are  not  very  nu- 
merous. In  the  case  of  Rust  v.  Larne,3  an  attorney 
agreed  to  conduct  a  suit  for  the  recovery  of  money 
and  certain  slaves,  and  in  case  of  success  to  receive 
one-third  of  the  amount  recovered,  or  the  value  of  the 
slaves.  The  court  held  that,  the  recovery  having  been 
at  the  time  doubtful  and  only  obtained  after  protract- 
ed litigation,  the  amount  so  agreed  on  was  not  so 
large  as  to  be  unconscionable.  Another  case  holding 
one-third  not  to  be  an  unconscionable  percentage  is 
In  re  Hynes,4  where  a  guardian  of  certain  infants  em- 
ployed counsel  to  recover  real  property  of  the  latter 
of  the  value  of  $141,660,  for  a  contingent  fee  of  one- 
third.  It  appearing  that  the  questions  involved  in  the 
litigation  were  of  great  importance  and  difficulty,  the 
court  held  the  agreement  a  reasonable  one.  In  only 
one  case  that  has  come  to  our  attention,  other  than  the 
recent  one  to  which  we  have  directed  attention,  has  a 
contingent  fee  of  fifty  per  cent  been  declared  uncon- 

1  Taylor  v.  Bemis,  110  U.  S.  42,  3  Sup.  Ct.  Rep.  441. 

2  121  Fed.  Rep.  184. 

s  14  Ky.  (4  Litt.)  411,  14  Am.  Dec.  172. 
*  105  N.  Y.  560,  12  N.  E.  Rep.  60. 


COMPENSATION  AND  ADVERTISING.  289 

scionable.1  The  weight  of  authority,  however,  is  to 
the  effect  that  no  hard  and  fast  rule  can  be  drawn  in 
such  cases,  and  that  in  many  cases  a  contingent  fee  of 
fifty  per  cent  would  be  perfectly  reasonable.2 

§  202.  Compensation— When  an  Advocate  May  Con- 
tract for  His  Services  on  a  Salary  Basis.— While  at 

the  present  time  there  is  no  ethical  objection  to  an  ad- 
vocate giving  up  his  entire  services  for  a  stated  sal- 
ary, nevertheless  it  is  a  sharp  departure  from  ancient 
ideals.  The  advocate  originally  could  accept  nothing 
but  an  " honorarium,"  and  he  must  serve  all  parties 
alike,  and  in  criminal  cases  was  subject  to  assignment 
by  the  court  to  defend  any  indigent  person  charged 
with  crime  who  might  need  the  services  of  an  advo- 
cate. Under  such  considerations  it  is  difficult  to  con- 
ceive how  an  advocate  could  sell  his  entire  time  and 
services  for  a  salary.  And  even  at  the  present  time 
many  objections  to  such  a  compact  are  apparent.  In 
the  first  place,  there  is  the  fundamental  idea  that  ad- 
vocacy is  not  an  independent  calling;  indeed,  the  ad- 
vocate, as  an  officer  of  the  court,  is  subject  to  the  lat- 
ter's  supervision  and  direction  in  many  particulars, 
and  where  he  sells  his  entire  time  and  service  to  a 
third  person  he  in  some  measure  restricts  his  ability 
to  comply  with  his  obligations  as  such  officer  of  the 

1  This  was  the  case  of  In  re  Sloan  (Pa.  1892),  14  Pa.  Co.  Ct.  359. 
In  this  case  the  court  held  that  an  agreement  to  pay  an  attorney  a 
contingent  fee  of  fifty  per  cent  of  a  claim  for  collection  will  not  be 
enforced  where  it  appeared  that  the  claim  was  not  difficult  of  proof 
and  might  have  been  enforced  after  judgment,  but  that  the  attor- 
ney  contented   himself   with   obtaining  judgment,   which   was   col- 
lected  twenty  years  later  by  counsel  associated  with  him  at  the 
creditor's  request. 

2  Cain  v.  Warford,  33  Md.  23;  Reece  v.  Kyle,  49  Ohio  St.  475,  31 
N.  E.  Rep.  747,  16  L.  R.  A.  721. 

'      19 


290  AMERICAN    ADVOCACY. 

court.  In  addition  to  that,  a  lawyer  lowers  the  stan- 
dard of  professional  dignity  and  brings  it  to  the  level 
of  a  mere  clerkship. 

We  are  not  now  speaking,  of  course,  of  those  con- 
tracts in  the  shape  of  a  retainer  by  corporations  by 
which  they  may  at  any  time  command  the  services  of 
the  attorney  during  the  life  of  the  contract.  By  such 
a  contract  an  attorney  does  not  sell  himself,  nor  all 
his  time,  to  the  corporation,  but  merely  gives  it  a  pref- 
erence over  other  clients.  In  other  words,  they  have 
the  first  call  on  their  services,  and  the  yearly  retainer 
may  or  may  not  be  in  full  compensation  for  his  ser- 
vices. 

Another  feature  of  this  question,  concerns  the  pro- 
priety of  an  attorney  contracting  to  give  his  services 
at  a  stated  salary  to  a  corporation  or  syndicate  who 
then  make  use  of  such  services  at  a  profit  to  themselves. 
A  contract  of  this  character  is  clearly  unethical  and 
illegal.  No  unlicensed  person  can  practice  law,  and 
any  contract  by  which  such  person  or  corporation  is 
enabled  to  make  profit  out  of  law  suits  by  hiring  an  ad- 
vocate at  a  stated  salary  to  carry  on  matters  of  litiga- 
tion, is  not  only  contrary  to  the  ethics  of  the  profes- 
sion, but  is  clearly  illegal  and  void.1 

§  203.  Advertising— General  Considerations.— Hard- 
ly a  single  important  meeting  of  a  bar  association  can 

i  Jarvis  v.  Great  Western  R.  W.  Co.,  8  C.  P.,  cited  in  15  Canada 
Law  Journal,  276.  In  this  case  the  corporation  hired  an  attorney 
on  a  salary  basis,  but  in  various  ways  were  able  to  use  his  services 
in  the  courts  at  a  profit  to  themselves.  The  court  said:  "If  what 
was  suggested  when  the  summons  was  originally  moved,  namely, 
that  the  defendants  sought  unlawfully  to  realize  a  profit  out  of  the 
professional  services  of  their  attorney  were  true,  I  suppose  the 
taxation  of  costs  would  be  prevented;  for  it  would,  in  principle, 
amount  to  allowing  suits  to  be  carried  on  in  the  name  of  an  attor- 
ney for  the  profit  of  an  uncertified  person." 


COMPENSATION  AND  ADVERTISING.  291 

take  place  anywhere  without  some  reference  being 
made  in  the  proceedings  to  the  ethics  of  advertising 
and  as  to  the  extent  to  which  a  lawyer  may  go  in  so- 
liciting business.  The  sentiment  seems  strong  in  the 
younger  generation  of  commercial  lawyers  to  pull 
away  from  the  old  ideals  of  the  profession  and  to  look 
upon  the  law  more  in  the  nature  of  a  business.  Some 
of  the  most  radical  of  this  class  of  lawyers  have  gone 
to  the  extent  of  calling  the  law  a  business,  and  claim- 
ing the  right  to  resort  to  any  and  all  methods  made 
use  of  in  ordinary  trade  and  commerce.  Such  state- 
ments have  had  the  unfortunate  effect  of  leading 
some  of  the  weaker  members  of  the  profession  into 
practices  which,  though  they  might  be  tolerated  in 
business,  cannot  be  tolerated  in  an  officer  of  the  court. 
And  herein  lies  the  secret  of  the  distinction  between 
law  and  business.  The  law  is  not  a  business  nor  an 
independent  profession,  as  that  of  medicine  or  den- 
tistry; it  is  an  adjunct  to  courts  of  justice.  The  law- 
yer is  an  officer  and,  as  an  officer,  he  owes  his  superior, 
the  court,  every  consideration  of  respect.  He  can 
therefore  indulge  in  no  practice  that  would  bring  the 
court  or  the  law  into  disrepute.  If  he  does,  he  not 
only  incurs  the  enmity  of  his  own  profession  but  also 
the  severe  displeasure  of  the  court,  who  in  exceptional 
cases  will  dismiss  him  as  its  officer  and  disbar  him  from 
the  practice  of  his  profession. 

In  the  year  1903,  Hon.  Mitchell  D.  Follansbee,  in 
an  address  before  the  Northwestern  University  School 
of  Law,  gave  utterance  to  what  we  consider  the  sound- 
est bit  of  advice  as  to  the  extent  to  which  a  lawyer 
may  advertise  we  have  ever  had  drawn  to  our  atten- 
tion. After  a  few  generalities  as  to  the  ethics  of  ad- 
vertising, Mr.  Follansbee  warns  the  lawyer  to  remem- 


292  AMERICAN    ADVOCACY. 

her,  always,  that  he  is  a  member  of  the  profession, 
and  that  because  he  is  a  member  of  the  profession, 
certain  things,  which  would  be  honorable  enough  for 
a  tradesman  to  do  in  the  way  of  advertising,  must  not 
be  done  by  him.  In  the  following  ten  sections  we  have 
used  much  of  Mr.  Follansbee's  address,  and  desire 
thus  publicly  to  give  him  credit  for  it.  The  author, 
however,  has  endeavored  to  follow  out  the  ideas  of  Mr. 
Follansbee  more  minutely  and  endeavored  to  enter 
a  little  more  in  particular  in  regard  to  a  subject  which 
is  of  such  great  interest  to  lawyers,  especially  to  those 
about  to  start  in  practice. 

§  204.  Advertising— Legal  Directories  and  News- 
paper Notoriety.— The  legal  directory  is  the  common- 
est form  of  legal  advertising.  The  desire  of  members 
of  the  bar  to  increase  their  business  has  become  so 
well  known,  that  all  over  the  country  men  in  their  vig- 
ils are  planning  new  schemes  and  making  new  ex- 
cuses for  taking  from  the  lawyer  the  price  of  a  line  or 
a  card  for  an  advertisement.  There  are  over  400  of 
these  legal  directories  published,  and  while  few  are  of 
any  value  to  the  practitioner,  they  often  succeed  ?n 
making  the  publisher  happy.  This  advertising  in  the 
legal  directories  is  all  a  matter  of  the  last  forty  or 
fifty  years,  and  now  one  may  safely  say  that  there  are 
few  firms  in  the  country  whose  names  do  not  appear 
in  one  list  or  another.  In  the  "English  Law  List," 
which  is  the  official  organ  of  the  bar  of  that  country, 
are  to  be  seen  the  cards  of  Alexander  &  Green,  Evarts, 
Choate  &  Beaman,  Parsons,  Shepard  &  Ogden,  of  New 
York,  and  several  other  well-known  firms  of  the  pres- 
ent day.  In  the  "Scottish  Law  List"  names  of  the 
same  class  appear.  The  same  is  true  of  the  "Irish 
Law  List."  The  Canadian  firms  advertise  extensive- 


COMPENSATION  AND  ADVERTISING.  293 

ly.  In  Kine's  International  Law  Directory,  a  London 
publication,  are  found  cards  of  lawyers  from  Cape 
Town,  Kimberley  and  Pietersmartisburg  to  Moscow. 
B.  D.  Milonopulu  of  Corfus,  in  Greece,  advertises  that 
he  corresponds  in  English;  Simeon  Petases,  Avocat, 
of  Jerusalem,  that  his  letters  will  be  in  Arabic ;  while 
Philip  Morton,  barrister  at  law  of  the  Middle  Temple, 
banished  at  Lahore,  in  the  Punjamb  District  of  India, 
calls  attention  to  the  fact  of  his  proficiency  in  Persian 
and  Urdu.  The  practice  of  the  insertion  of  a  card  is 
so  common,  so  world-wide,  that  it  no  longer  attracts 
any  adverse  criticism.  This  sort  of  advertising  has 
one  advantage.  It  keeps  a  man's  name  before  his 
friends  in  the  profession,  and  when  they  have  an  item 
of  business  to  send  to  his  town,  and  take  up  the  legal 
directory,  or  the  banker's  encyclopedia,  or  whatever 
list  they  use,  they  are  apt  to  be  reminded  of  some  one 
they  have  known  by  seeing  his  name,  and  so  send  him 
business. 

As  a  practical  matter,  it  is  doubtful  whether  news- 
paper notoriety  is  potent  in  building  up  a  good  clien- 
tage. It  it  were,  there  are  a  lot  of  men  who  would 
have  reached  affluence  long  ago ;  for  many  men  in  their 
time  have  seen  their  names  in  the  head  lines  and 
their  opinion  referred  to  in  editorial  utterances,  but 
their  popularity  and  prestige  seem  to  have  been  as 
ephemeral  as  the  issue  of  the  paper  which  exploited 
them,  and  their  reputations  have  been  made  and  lost 
before  a  single  new  client  heard  anything  about  them. 
That  sort  of  publicity  only  impresses  the  man  who 
does  not  know  how  those  things  are  done,  and  that 
kind  of  a  man  seldom  has  any  law  business  worth  do- 
ing, and  the  man  who  really  has  law  business  that  is 
worth  doing,  as  a  rule,  does  not  care  to  pay  to  keep 


294  AMERICAN     ADVOCACY. 

his  attorney  in  the  calcium  light  of  publicity.  He  rec- 
ognizes that  living  in  the  public  eye  is  not  necessarily 
the  most  potent  in  real  work. 

§  205.  Advertising— Divorce  Advertising.— Divorce 
advertising  seems  to  be  the  most  prevalent  occasion 
for  stumbling  on  the  part  of  lawyers  in  soliciting  busi- 
ness. Some  states  prohibit  the  solicitation  of  such 
business  altogether,  under  penalty  of  fine.  "Where 
such  statutes  do  not  prevail  it  is  probable  that  a  sim- 
ple card  in  a  newspaper  soliciting  divorce  business 
would  not  be  any  more  reprehensible  in  the  eye  of  the 
court  than  a  solicitation  of  any  other  branch  of  legal 
practice,  although  in  some  respects  it  is  more  damag- 
ing to  public  morals,  and  is  certainly  a  breach  of  pro- 
fessional ethics.1  But  in  such  advertisements  mislead- 
ing statements  are  made  and  false  inducements  hung 
out  that  bring  both  the  courts  and  the  law  into  bad  re- 
pute, and  affect  injuriously  the  public  welfare.  Thus 
where  an  attorney  publishes  advertisements  without 
any  signature,  representing  that  he  can  procure  di- 
vorces for  causes  not  known  to  the  law,  and  without 
any  publicity  and  without  reference  to  the  residence 
of  the  parties,  and,  by  such  advertisements,  solicits 

i  Mr.  Follansbee  relates  an  interesting  incident.  He  says:  "While 
in  Cleveland,  alongside  of  a  picture  of  a  woman  with  her  right 
arm  raised  toward  heaven,  almost  touching  the  word  'free'  in  large 
letters,  we  find  the  following  modest  announcement:  'Divorces.  Do 
not  apply  for  a  divorce  until  you  have  called  on  us,  as  we  can  save 
you  the  time,  trouble  and  money.  Consult  us  when  in  any  trouble 
and  it  will  cost  you  nothing,  and  our  experience  may  be  of  inestima- 
ble value  to  you.  The  very  best  experienced  legal  talent.  Divorce 
and  accident  or  injury  cases  a  specialty.'  Of  course,  nowhere  are 
advertisements  such  as  I  have  quoted  regarded  as  dignified  or  pro- 
fessional, and  they  are  utterly  useless.  It  is  foolish  to  lose  profes- 
sional standing  if  there  is  no  premium  in  it.  It  is  too  much  like 
being  a  journeyman  pirate  with  no  share  in  the  swag." 


-    COMPENSATION  AND  ADVERTISING.  295 

business  of  that  character  by  communication  through 
a  particular  postoffice  box,  by  its  number,  such  con- 
duct is  a  libel  on  the  courts  and  a  disgrace  to  the  at- 
torney, and  is  calculated  to  bring  reproach  upon  the 
profession,  and  the  name  of  the  offending  party  should 
be  stricken  from  the  roll.1 

So,  .also,  an  advertisement  reading:  "Divorces  le- 
gally obtained  very  quietly;  good  everywhere.  Box 
2344,  Denver," — is  against  good  morals,  is  a  false  rep- 
resentation, and  a  libel  on  courts  of  justice,  and  re- 
peated publications  in  a  newspaper  of  such  advertise- 
ment by  an  attorney  constitutes  malconduct  in  his  of- 
fice, for  which  the  supreme  court  is  empowered  by 
statute  to  strike  his  name  from  the  roll  of  attorneys.2 

In  the  leading  case  of  People  v.  McCabe,  cited  in 
the  note,  the  court  takes  a  very  pronounced  position: 
"The  ethics  of  the  profession,"  says  the  court,  "for- 
bid that  an  attorney  should  advertise  his  talents  or 
his  skill  as  a  shopkeeper  advertises  his  wares.  An 
attorney  may  properly  accept  a  retainer  for  the  pros- 
ecution or  defense  of  an  action  for  divorce  when  con- 
vinced that  his  client  has  a  good  cause.  But  for  any- 
one to  invite  or  encourage  such  litigation  is  most  rep- 
rehensible. The  marriage  relation  is  too  sacred,  it 
affects  too  deeply  the  happiness  of  the  family;  it  con- 
cerns too  intimately  the  welfare  of  society;  it  lies  too 
near  the  foundation  of  all  good  government  to  be  brok- 
en up  or  disturbed  for  slight  or  transient  causes.  * 
When  a  lawyer  advertises  that  divorces  can  .be  le- 
gally obtained  very  quietly,  and  that  such  divorce  will 
l)e  good  everywhere,  such  advertisement  is  a  strong 

1  People  v.  Goodrich,  79  111.  148. 

2  People  v.  McCabe,  18  Colo.  186,  32  Pac.  Rep.  28,  36  Am.  St.  Rep. 
270. 


296  AMERICAN    ADVOCACY. 

inducement — a  powerful  temptation — to  many  per- 
sons to  apply  for  divorces  who  would  otherwise  be 
deterred  from  taking  such  a  step  from  a  wholesome 
fear  of  public,  opinion.  *  *  Such  an  advertisement 
is  against  good  morals  public  and  private ;  it  is  a  false 
representation  and  a  libel  upon  courts  of  justice. 
Divorces  cannot  be  legally  obtained  very  quietly  which 
shall  be  good  everywhere.  To  say  that  divorces  can 
be  obtained  very  quietly  is  equivalent  to  saying  that 
they  can  be  obtained  without  publicity — a  libel  on  the 
integrity  of  the  judiciary." 

§  206.  Advertising— Politics  as  an  Advertising  Me- 
dium.— There  are  two  ways  of  going  into  politics :  one 
as  the  active  worker  in  a  limited  section  of  territory, 
such  as  a  precinct,  and  there  one  may  grow  acquaint- 
ed with  a  certain  number  of  plain  people,  and  if  he  is 
patient  and  a  good  fellow,  and  they  like  him,  sooner 
or  later  those  plain  people,  or  their  friends,  will  need, 
and  must  have,  the  advice  and  service  of  an  attorney. 
The  other  method  is  to  start  in  as  an  orator  or  spell- 
binder. The  latter  method  sometimes  leads  the  young 
lawyer  to  retainers  in  sensational  suits,  but  there  are 
so  many  spellbinders  in  the  city  or  county,  and  so  few 
sensational  suits,  that  oratory  is  hardly  an  employ- 
ment one  can  count  on.  When  it  comes  to  officeholding, 
the  lawyer  is  usually  disappointed,  and  if  he  does  hold 
office,  though  his  name  is  before  the  people,  he  does 
not  advance  especially  in  his  profession.  The  offices 
are  few  and  the  aspirants  many,  and  rewards,  at  best, 
are  scant  compared  with  the  industry  which  is  need- 
ed. The  failure  of  the  young  lawyer  who  goes  into 
politics  to  obtain  the  proper  sort  of  advertising,  is  be- 
cause of  the  fact  that  he  finds  himself  advertised,  not 
as  a  lawyer,  but  as  a  politician,  or  that  he  becomes 


COMPENSATION  AND  ADVERTISING.  297 

known  as  one  who  succeeds  so  little  in  law  that  he  has 
time  to  devote  to  the  duties  of  every  right-minded 
citizen. 

§  207.  Advertising— Social  Acquaintance  and  Club 
Life.— Some  men  hope  to  become  advertised  through 
social  connections;  but  only  in  the  stories  written  by 
high-school  girls  is  the  young  lawyer  retained  as  he 
emerges  from  a  conservatory  or  enters  the  box  at  the 
opera.  The  average  business  man  would  rather  lend 
his  legal  friend  one  hundred  dollars,  without  any  clear 
hope  of  getting  it  back,  than  trust  him  with  a  ten-dol- 
lar lawsuit.  He  will  do  the  first  thing  as  a  matter  of 
friendship,  but  when  he  does  the  second  it  is  a  matter 
of  business,  and  the  business  man's  whole  training  has 
taught  him  that  the  men  who  do  the  best  work  are  not 
the  men  who  have  much  time  for  pleasures  of  the  rich. 
Of  course,  there  are  exceptions.  Sometimes,  when  a 
lawyer  once  gets  a  start  and  has  an  acquaintance,  it  is 
worth  while  to  take  a  long  trip  in  company  with  a 
wealthy  client,  with  a  wealthy  man  who  may  become  a 
client;  but  this  is  a  long  shot,  and  always  expensive. 

About  one  lawyer  a  day  plans  to  increase  his  ac- 
quaintance by  joining  a  club  or  lodge,  and  therefore, 
whether  he  join  for  golf  or  billiards,  or  for  fraternal 
insurance,  he  is  sure  to  find  the  territory  overcrowded 
and  overworked,  while  the  whole  social  fabric  is  honey- 
combed with  members  of  the  profession;  and  there, 
again,  the  men  whose  business  is  worth  while,  resent 
the  insurance  agent,  and  the  dentist  brings  up  un- 
pleasant memories,  but  of  a  lawyer,  most  of  all,  they 
are  cautious.  If  they  get  to  know  him  well  as  a  man, 
they  respect  him  too  highly  to  confess  their  financial 
embarrassments  or  marital  infelicities,  or  moral  de- 
linquencies; and  yet,  they  will  bring  those  same 


298  AMERICAN     ADVOCACY. 

troubles  to  a  lawyer  whom  they  do  not  know,  without 
reserve. 

§  208.  Advertising— Pretending  to  Be  Learned  or 
Whelmed  with  Business.— It  was  the  old  idea  that  a 
man  ought  to  look  like  a  lawyer.  Fifty  years  ago, 
young  men  copied  the  forehead  of  Mr.  Webster.  Later, 
especially  in  this  western  country,  men  failed  to  comb 
their  hair  because  Matt  Carpenter,  of  Wisconsin,  did 
not.  Boy  orators  come  to  the  cities  every  year  and 
think  that  eccentricities  will  be  mistaken  for  original- 
ity of  mind,  and  that  a  foghorn  voice  will  be  accepted 
as  an  indication  of  great  force  of  thought.  It  is  to  be 
noticed  that  as  they  learn  the  practice  of  the  upper 
courts  they  get  over  the  eccentricities  of  dress  and 
put  a  soft  pedal  on  their  utterances.  Like  them  is  the 
man  who  always  carries  the  green  bag  on  the  streets, 
whether  he  has  anything  in  it  or  not,  because  he  has 
heard  that  Boston  lawyers  do  that,  and  the  man  who 
always  carries  a  law  book  on  street  cars  or  suburban 
trains,  because  he  thinks  it  will  give  him  a  reputation 
as  a  student.  There  are  other  men  who  succeed  quite 
well  because  through  some  aphasia  they  never  talk  on 
any  but  legal  subjects,  and  that,  irrespective  of  what 
any  particular  occasion  may  demand.  They  succeed 
pretty  fairly  well,  as  a  rule,  because  they  impress 
everyone  with  the  fact  that  they  are  lawyers  and  up 
even  with  the  times,  and  that  mere  fact  helps  them. 
Take  a  young  man  with  no  striking  ability  and  let  him 
constantly  attend  all  manner  of  bar  association  and 
legal  club  meetings.  Sooner  or  later  there  will  get  to 
be  a  suspicion  among  those  who  see  him  in  such  places 
that  he  must  be  a  lawyer,  and  if  they  see  him  there 
long  enough,  they  get  an  idea  that  he  must  be  a  pretty 
good  lawyer,  in  the  same  way  that  we  figure  that  any 
old  settler  must  have  something  distinctive  about  him. 


COMPENSATION  AND  ADVERTISING.  299 

§  209.  Advertising-— Employment  of  Runners.— 
Under  statutes  in  force  in  some  states,  it  will  be  an  oc- 
casion for  disbarring  an  attorney  if  he  "lends  his 
name  to  be  used  as  attorney  and  counsellor  by  another 
person  who  is  not  an  attorney  and  counselor."  Such 
a  statute,  for  instance,  is  in  force  in  California.  It 
has  been  held  in  that  state  that  a  contract  by  an  at- 
torney to  pay  a  layman  a  third  of  his  fee,  if  the  lay- 
man procures  the  employment  of  the  attorney  by  a 
litigant,  is  contrary  to  the  public  policy  of  that  state 
as  expressed  by  the  statute  we  have  quoted,  as  the  ef- 
fect of  such  a  contract  is  to  permit,  by  indirection,  the 
use  of  another  attorney's  name  by  one  not  an  attorney.1 
Since  the  practice  denounced  in  this  case  is  so  often 
practiced,  especially  by  attorneys  making  a  specialty 
of  negligence  cases,  it  would  not  be  a  useless  waste  of 
space  to  call  attention  to  some  strong  and  unusual 
statements  in  the  court's  opinion  in  this  case.  Speak- 
ing of  the  attorneys'  contract  with  one  Bolte,  a  lay- 
man, by  which  the  latter  was  to  receive  one-third  of 
the  fee  of  the  former  in  any  cases  procured  through 
his  efforts,  the  court  said:  "Was  not  Bolte  really 
allowed  to  use  their  names  in  the  prosecution  of  a 
matter  in  litigation?  Under  the  employment  of  them 
as  attorneys,  made  through  Bolte 's  procurement,  they 
engaged  to  use  their  faculties  as  attorneys  and  coun- 
selors at  law  for  his  benefit,  and  that,  too,  in  a  cause 
in  which  he  had  no  interest  as  a  party.  By  the  terms 
of  the  agreement  he  was  to  derive  a  benefit  from  the 
rendition  of  their  services  in  their  professional  ca- 
pacity, and  to  receive  a  share  of  their  fee,  as  if  he  had 
been  concerned  with  them  as  a  regularly  admitted  at- 

i  Alpers  v.  Hunt,  86  Gal.  78,  24  Pac.  Rep.  846,  21  Am.  St.  Rep.  17, 
19  L.  R.  A.  483. 


300  AMERICAN     ADVOCACY. 

torney.  He  was  thus  enabled  through  their  agency, 
vicariously,  and  not  openly  in  his  own  name,  to  aid  in 
the  prosecution  of  a  matter  in  litigation,  and  to  re- 
ceive through  it  such  a  reward  as  is  usually  gained  by 
an  attorney  regularly  admitted  to  exercise  his  profes- 
sion. *  *  *  If  such  a  practice  were  allowed,  an  attor- 
ney might  have  a  number  of  undisclosed  associates 
through  his  agency  exercising  the  functions  of  an  at- 
torney and  counselor,  and  reaping  the  rewards  flow- 
ing therefrom,  without  resting  under  any  of  the  re- 
sponsibilities incident  to  such  position,  and  possess- 
ing none  of  the  qualifications  which  the  law  demands 
and  requires."1 

i  A  certain  class  of  lawyers  who  look  upon  their  profession  more 
as  a  business  than  a  profession  can  see  nothing  wrong  in  a  contract 
with  a  layman  by  which  the  latter  engages  to  furnish  him  with 
causes  of  action  and  evidence  to  support  them  in  consideration  of 
a  certain  percentage  of  the  attorney's  fee.  A  recent  case  holds  that 
such  a  contract  is  absolutely  void  and  unenforceable.  Langdon  v. 
Conlin,  93  N.  W.  Rep.  388.  In  this  case  the  Supreme  Court  of  Ne- 
braska held  that  a  contract  between  an  attorney  at  law  and  one 
who  is  not  such  an  attorney,  by  which  the  latter  agrees  to  procure 
the  employment  of  the  former  by  third  persons  for  the  prosecu- 
tion of  suits  in  courts  of  record,  and  also  to  assist  in  looking  after 
and  procuring  witnesses  whose  testimony  is  to  be  used  in  the  cases, 
in  consideration  of  a  share  of  the  fees  which  the  attorney  shall  re- 
ceive for  his  services,  is  against  public  policy  and  void.  In  render- 
ing its  decision  the  court  voiced  the  following  sentiments:  "It  is 
apparent  that  it  is  the  policy  of  the  legislature  to  fix  a  high  stan- 
dard of  professional  ethics  to  govern  the  conduct  of  attorneys  in 
their  relations  with  clients  and  courts,  and  to  protect  litigants  and 
courts  of  justice  from  the  imposition  of  shysters,  charlatans,  and 
mountebanks.  It  seems  to  us  that  the  contract  in  issue  is  but  a 
thinly  veiled  subterfuge  by  which  the  plaintiff,  who,  it  is  conceded, 
was  not  a  member  of  the  bar,  and  who  had  never  complied  with 
any  of  the  provisions  of  chapter  seven,  for  the  purpose  of  authoriz- 
ing him  to  engage  in  the  practice  of  law,  undertook  to  break  into 
the  conduct  of  proceedings  in  a  court  of  record,  to  which  he  was 
not  a  party,  by  attempting  to  form  a  limited  and  silent  partnership 
with  one  who  had  complied  with  the  provisions  of  the  law  and  was 


COMPENSATION  AND  ADVERTISING.  301 

§  210.  Advertising— "Buying  Up"  Causes  of 
Action.— Xn  New  York  a  lawyer  can  be  disbarred  for 
''buying  up"  legal  business.  Thus,  a  statute  in  that 
state  provides  that  "no  attorney  shall  buy  any  bond, 
bill,  promissory  note,  book  debt,  or  other  thing  in  ac- 
tion, with  the  intent  and  for  the  puropse  of  bringing 
suit  thereon."  The  courts  have  held  that  a  violation 
of  this  statute  is  a  ground -for  disbarment.1  In  other 
states,  having  no  such  statute,  the  "buying  up"  of 
business  of  this  nature  will  not  be  ground  for  disbar- 
ring the  attorney  and  is  only  questionable  as  to  the  ex- 
tent such  action  might  violate  the  rule  of  law  in  that 
particular  state  against  champerty  and  maintenance. 
Thus,  in  Michigan  it  is  a  violation  of  no  law  for  an  at- 
torney to  purchase  a  chattel  from  one  party  and  bring 
replevin  against  another  to  recover  possession  of  it.2 

In  a  very  recent  case,  however,  it  has  been  held  that 
champerty  renders  an  attorney  amenable  to  summary 
proceedings  for  disbarment,  notwithstanding  it  may 
be  effectual  as  a  defense  to  the  enforcement  of  a  con- 
tract.1 

§  211.  Advertising— Stealing  Another  Attorney's 
Practice,— It  is  also  a  good  ground  for  the  disbarment 
of  an  attorney  that  he  endeavor  to  win  business  by 
stealing  the  patronage  of  a  brother  attorney.  Noth- 
ing, perhaps,  could  be  more  reprehensible,  at  least  in 

entitled  to  the  emoluments  of  the  profession."  The  decision  in  this 
case  is  supported  by  the  authorities:  Alpers  v.  Hunt,  86  Cal.  78, 
24  Pac.  Rep.  846,  9  L.  R.  A.  483,  21  Am.  St.  Rep.  17;  Burt  v.  Place, 
6  Cow.  (N.  Y.)  431;  Munday  v.  Whisenhunt,  90  N.  C.  458;  Lyon  v. 
Hussey,  82  Hun,  15. 

1  People  v.  Waldbridge,  6  Cow.,  (N.  Y.)  517. 

2  Town  v.  Tabor,  34  Mich.  262. 

s  In  re  Evans,  22  Utah,  366,  62  Pac.  Rep.  913. 


302  AMERICAN    ADVOCACY. 

the  eyes  of  the  profession,  than  such  conduct.  One 
attorney  has  no  right  to  intermeddle  with  the  clients 
of  another  attorney  and  endeavor  to  secure  his  own 
employment  at  the  expense  of  the  other.  He  may  be 
disbarred  for  such  practice.  In  the  case  of  Baker  v. 
State,1  it  was  considered  a  proper  cause  for  striking 
an  attorney  from  the  rolls  that  he  intermeddled  be- 
tween a  brother  attorney  and  his  client,  grossly  slan- 
dered the  former  and  endeavored  to  induce  the  client 
to  forsake  the  advice  of  her  own  counsl  and  follow  his 
instead,  offering  to  furnish  advice  without  charge. 

§  212.  Advertising— Office  Furniture  and  Modern 
Business  Methods.— There  are  lawyers  who  do  not  go 
out  of  their  offices  to  advertise,  and  who  smile  at  those 
who  do.  It  is  a  trade  maxim  in  a  department  store 
that  the  most  important  thing  in  selling  goods  is  to 
get  customers  into  the  store,  and  it  is  figured  that 
every  customer  who  comes  into  the  store  will  spend 
just  about  so  much  money,  anol  likewise,  these  men 
argue  that  when  a  man  comes  into  your  office,  it  is  only 
a  question  of  time  when  he  pays  some  of  his  money  for 
your  advice  or  efforts,  and  they  claim  that  the  money 
that  is  spent  for  this  office  advertising  meets  the  best 
returns.  In  the  papers  and  pleadings  and  letters  that 
they  send  out  they  affect  scrupulous  care,  and  their  re- 
cipient concludes  that  the  writer  is  careful  and  pains- 
taking, and  methodical.  The  office  and  the  work  table 
are  orderly,  and  this  fact  argues  an  orderly  mind.  The 
office  stationery  is  rich  but  not  gaudy,  which  is  a  sign 
of  prosperity  long  continued,  and  generally  one  feels 
that  the  appearance  of  industry  accompanies  the  fact. 

i  Baker  v.  State,  90  Ga.  153. 


COMPENSATION  AND  ADVERTISING.  303 

§  213.  Advertising— The  Final  Test  of  Advertising 
Methods.— The  whole  test  of  whether  advertising  is 
effective  is  whether  the  work  of  the  advertiser  is  clum- 
sy or  artistic,  is  coarse  or  smooth.  The  man  who  does 
coarse  work  may  win  for  a  week  or  a  year,  but  he  will 
never  know  the  heights  of  professional  success;  while 
the  smooth  man,  who  regards  these  questions  deli- 
cately and  works  quietly  and  without  friction,  who 
dispenses  with  the  steam  calliope  as  an  unnecessary 
adjunct,  finds  that  each  year  his  profession  is  more  of 
a  joy  and  his  acts  in  the  profession  better  appreciated. 

There  is  something  of  a  contrast  between  the  peo- 
ple who  are  going  to  make  things  happen  and  who 
bring  to  the  profession  the  tricks  of  the  market  place, 
and  those  who  prefer  to  do  business  in  a  dignified 
way,  a  way  that  the  great  leaders  of  the  bar  have 
known,  and  which  the  so-called  business  lawyer  can 
never  understand  and  can  never  appreciate.  And  this 
significant  fact  remains,  and  the  only  fact  of  which 
we  may  be  perfectly  sure,  that  the  man  who  does 
coarse  work,  and  who  is  guilty  of  noisy  advertising, 
whether  in  the  country  newspapers  or  in  the  cafe  of 
the  Waldorf-Astoria,  will  not  win  enduring  success. 

From  time  to  time  some  trial  reported  in  the  news- 
paper attracts  the  attention  of  everyone,  and  the 
young  practitioner  is  asked  by  the  barber  who  serves 
him  whether  a  certain  man  is  not  the  best  lawyer  in 
town.  The  barbers  and  men  in  their  station  of  life 
make  up  their  minds  easily  and  usually  on  insufficient 
information.  They  reflect  the  average  opinion  of  that 
part  of  the  public  to  which  litigation  and  ownership 
are  unknown  delights,  a  public  never  profitable.  The 
clients  who  really  help  are  the  men  who  are  strong 
and  steady.  These  men  will  not  be  deceived  by  ad- 


304  AMERICAN    ADVOCACY. 

vertising.  They  will  be  attracted  to  polite  gentlemen 
of  graceful  address,  engaging  personality  and  habits 
of  hard  work,  and  little  by  little  they  will  show  their 
appreciation  in  practical  ways.  If  the  man  whom  they 
know  is  workmanlike,  they  will  hear  of  that  fact  soon- 
er or  later;  if  he  wins  a  difficult  case,  the  news  will 
get  to  them,  even  if  the  young  man  is  guilty  of  spread- 
ing it;  if  he  draws  contracts  and  wills  cleverly  and 
smoothly  and  accurately,  knowledge  of  that  fact  will 
.also  get  about,  until  in  time  the  lawyer  will  find  that 
his  clients  are  so  many  enthusiasts.  They  are  so  sure 
of  his  ability  and  his  superiority  that  they  are  for- 
ever sounding  his  praises;  so  proud  of  his  services, 
and  the  results  those  services  have  obtained,  that  each 
makes  an  especial  effort  to  send  new  clients  to  the  of- 
fice, until  the  lawyer  is  beyond  the  need  of  any  adver- 
tising with  which  he  is  concerned.1 

i  "Such  a  lawyer,"  says  Mr.  Follansbee,  "finds  himself  sitting 
quietly  and  modestly  while  his  name  is  mentioned  at  bank  boards 
and  around  the  firesides  as  one  who,  by  inheritance  and  training,  is 
honest,  thoughtful  and  quiet,  and  by  industry  has  become  strong; 
and  the  monument  of  such  a  man  will  not  be  a  few  envelopes  of 
press  clippings,  or  packages  of  ballots  never  voted,  or  programs  of 
Chautauqua  assemblies,  but  it  will  be  found  in  the  reported  deci- 
sions of  cases  in  which  he  was  victorious;  in  accurately  drawing 
conveyances  which  have  stood  the  test  of  years;  and  in  the  esteem 
in  which  he  is  held  by  families  of  quiet,  God-fearing  people,  who 
have  learned  from  him  to  place  the  help  and  friendship  of  the  law- 
yer only  slightly  below  that  of  the  priest." 


APPENDIX. 


CANONS  OF  PROFESSIONAL  ETHICS* 


PREAMBLE 

In  America,  where  the  stability  of  Courts  and  of  all 
departments  of  government  rests  upon  the  approval 
of  the  people,  it  is  peculiarly  essential  that  the  system 
for  establishing  and  dispensing  Justice  be  developed 
to  a  high  point  of  efficiency  and  so  maintained  that  the 
public  shall  have  absolute  confidence  in  the  integrity 
and  impartiality  of  its  administration.  The  future  of 
the  Republic,  to  a  great  extent,  depends  upon  our  main- 
tenance of  Justice  pure  and  unsullied.  It  cannot  be  so 
maintained  unless  the  conduct  and  the  motives  of  the 
members  of  our  profession  are  such  as  to  merit  the 
approval  of  all  just  men. 


*[XOTE. — The  following  Canons  of  Professional  Ethics  -were 
adopted  by  the  American  Bar  Association  at  its  thirty-first  annual 
meeting-  at  Seattle,  Washington,  on  August  27,  1908. 

The  Canons  were  prepared  by  a  committee  composed  of 
Henry   St.   George   Tucker,   Virginia,   Chairman. 
Lucien  Hugh  Alexander,   Pennsylvania,  Secretary. 
David  J.   Brewer,  District  of  Columbia. 
Frederick  V.  Brown,  Minnesota. 
J.  M.  Dickinson,  Illinois. 
Franklin  Ferriss,  Missouri. 
"William  "Wirt  Howe,  Louisiana. 
Thomas  H.  Hubbard,  New  York. 
James  G.  Jenkins,   "Wisconsin. 
Thomas  Goode  Jones,  Alabama. 
Alton  B.   Parker,  New  York. 
George  R.  Peck,  Illinois. 
Francis  Lynde  Stetson,  New  York. 
Ezra  R.   Thayer,  Massachusetts.] 

20 


306  APPENDIX. 

II 

THE  CANONS  OF  ETHICS 

No  code  or  set  of  rules  can  be  framed,  which  will 
particularize  all  the  duties  of  the  lawyer  in  the  vary- 
ing phases  of  litigation  or  in  all  the  relations  of  pro- 
fessional life.  The  following  canons  of  ethics  are 
adopted  by  the  American  Bar  Association  as  a  general 
guide,  yet  the  enumeration  of  particular  duties  should 
not  be  construed  as  a  denial  of  the  existence  of  others 
equally  imperative,  though  not  specifically  mentioned: 

1.  The  duty   of  the  Lawyer  to  the   Courts. — It  is  the 
duty   of   the   lawyer    to    maintain    towards    the    Courts    a 
respectful  attitude,  not  for  the  sake  of  the  temporary  in- 
cumbent of  the  judicial  office,  but  for  the  maintenance  of 
its  supreme  importance.    Judges,  not  being  wholly  free  to 
defend   themselves,  are  peculiarly   entitled   to   receive   the 
support  of  the  Bar   against  unjust  criticism   and   clamor. 
Whenever  there  is  proper  ground  for  serious  complaint  of 
a  judicial  officer,  it  is  the  right  and  duty  of  the  lawyer  to 
submit  his  grievances  to  the  proper  authorities.     In  such 
cases,  but  not  otherwise,  such  charges  should  be  encour- 
aged and  the  person  making  them  should  be  protected. 

2.  The  Selection  of  Judges. — It  is  the  duty  of  the  Bar 
to  endeavor  to  prevent  political  considerations   from   out- 
weighing judicial   fitness   in   the   selection   of  Judges.      It 
should  protest  earnestly  and  actively  against  the  appoint- 
ment   or    election    of    those    who    are    unsuitable    for    the 
Bench ;  and  it  should  strive  to  have  elevated  thereto  only 
those  willing  to  forego  other  employments,  whether  of  a 
business,  political  or  other  character,  which   may  embar- 
rass their  free  and  fair  consideration  of  questions  before 
them  for  decision.     The  aspiration  of  lawyers  for  judicial 
position  should  be  governed  by  an   impartial  estimate  of 


APPENDIX.  307 

their  ability  to  add  honor  to  the  office  and  not  by  a  desire 
for  the  distinction  the  position  may  bring  to  themselves. 

3.  Attempts  to  Exert  Personal  Influence  on  the  Court. 
— Marked  attention  and  unusual  hospitality  on  the  part  of 
a  lawyer  to  a  Judge,  uncalled  for  by  the  personal  relations 
of  the  parties,  subject  both  the  Judge  and  the  lawyer  to 
misconstructions    of   motive    and    should   be    avoided.     A 
lawyer  should  not  communicate  or  argue  privately  with 
the  Judge   as   to  the  merits  of  a  pending  cause,  and  he 
deserves  rebuke  and   denunciation  for  any   device  or   at- 
tempt to  gain  from  a  Judge  special  personal  consideration 
or  favor.     A  self-respecting  independence  in  the  discharge 
of  professional  duty,  without  denial  or  diminution  of  the 
courtesy  and. respect  due  the  Judge's  station,  is  the  only 
proper   foundation   for  cordial   personal   and   official   rela- 
tions between  Bench  and  Bar. 

4.  When  Counsel  for  an  Indigent  Prisoner. — A  lawyei 
assigned  as  counsel  for  an  indigent  prisoner  ought  not  to 
ask  to  be  excused  for  any  trivial  reason,  and  should  always 
exert  his  best  efforts  in  his  behalf. 

5.  The   Defense   or  Prosecution   of   Those   Accused   of 
Crime. — It  is  the  right  of  the  lawyer  to  undertake  the  de- 
fense of  a  person  accused  of  crime,  regardless  of  his  ^per- 
sonal opinion  as  to  the   guilt   of  the  accused;  otherwise 
innocent  persons,  victims  only  of  suspicious  circumstances, 
might  be  denied  proper  defense.     Having  undertaken  such- 
defense,   the   lawyer   is   bound  by   all   fair  and   honorable 
means,  to  present  every  defense  that  the  law  of  the  land 
permits,   to  the   end  that  no  person  may   be   deprived  of 
life  or  liberty,  but  by  due  process  of  law. 

The  primary  duty  of  a  lawyer  engaged  in  public  pro- 
secution is  not  to  convict,  but  to  see  that  justice  is  done 
The  suppression  of  facts  or  the  secreting  ot  witnesses 
capable  of  establishing  the  innocence  of  the  accused  is 
highly  reprehensible. 

6.  Adverse  Influences  and  Conflicting  Interests. — It  is 
the  duty  of  a  lawyer  at  the  time  of  retainer  to  disclose  t« 


'508  APPENDIX. 

the  client  all  the  circumstances  of  his  relations  to  the 
parties,  and  any  interest  in  or  connection  with  the  con- 
troversy, which  might  influence  the  client  In  the  selection 
of  counsel. 

It  is  unprofessional  to  represent  conflicting  interests, 
except  by  express  consent  of  all  concerned  given  after  a 
full  disclosure  of  the  facts.  Within  the  meaning  of  this 
canon,  a  lawyer  represents  conflicting  interests  when,  in 
behalf  of  one  client,  it  is  his  duty  to  contend  for  that  which 
duty  to  another  client  requires  him  to  oppose. 

The  obligation  to  represent  the  client  with  undivided 
fidelity  and  not  to  divulge  his  secrets  or  confidences  for- 
bids also  the  subsequent  acceptance  of  retainers  or  em- 
ployment from  others  in  matters  adversely  affecting  any 
interest  of  the  client  with  respect  to  which  confidence  has 
been  reposed. 

7.  Professional  Colleagues  and  Conflicts  of  Opinion. — 
A  client's  proffer  of  assistance  of  additional  counsel  should 
not  be  regarded  as  evidence  of  want  of  confidence,'  but  the 
matter  should  be  left  to  the  determination  of  the  client.  A 
lawyer  should  decline  association  as  colleague  if  it  is  ob- 
jectionable to  the  original  counsel,  but  if  the  lawyer  first 
retained  is  relieved,  another  may  come  into  the  case. 

When  lawyers  jointly  associated  in  a  cause  cannot  agree 
as  to  any  matter  vital  to  the  interest  of  the  client,  the  con- 
flict of  opinion  should  be  frankly  stated  to  him  for  his 
final  determination.  His  decision  should  be  accepted  un- 
less the  nature  of  the  difference  makes  it  impracticable  for 
the  lawyer  whose  judgment  has  been  overruled  to  co- 
operate effectively.  In  this  event  it  is  his  duty  to  ask  the 
client  to  relieve  him. 

Efforts,  direct  or  indirect,  in  any  way  to  encroach  upon 
the  business  of  another  lawyer,  are  unworthy  of  those  who 
should  be  brethren  at  the  Bar;  but,  nevertheless,  it  is  the 
right  of  any  lawyer,  without  fear  or  favor,  to  give  proper 
advice  to  those  seeking  relief  against  unfaithful  or  neglect- 
ful counsel,  generally  after  communication  with  the  law- 
yer of  whom  the  complaint  is  made. 


APPENDIX.  309 

8.  Advising  Upon  the  Merits  of  a  Client's  Cause. — A 
lawyer  should  endeavor  to  obtain  full  knowledge  of  his 
client's  cause  before  advising  thereon,  and  he  is  bound  to 
give  a  candid  opinion  of  the  merits  and  probable  result  of 
pending  or  contemplated  litigation.     The  miscarriages  to 
which  justice  is  subject,  by  reason  of  surprises  and  dis- 
appointments in  evidence  and  witnesses,  and  through  mis- 
takes  of  juries   and   errors   of   Courts,   even   though   only 
occasional,  admonish  lawyers  to  beware  of  bold  and  con- 
fident assurances  to  clients,  especially  where  the  employ- 
ment may   depend   upon   such   assurance.     Whenever  the 
controversy  will  admit  of  fair  adjustment,  the  client  should 
be  advised  to  avoid  or  to  end  the  litigation. 

9.  Negotiations  With  Opposite  Party. — A  lawyer  should 
not  in  any  way  communicate  upon  the  subject  of  contro- 
versy  with    a   party    represented    by    counsel;    much   less 
should  he  undertake  to  negotiate  or  compromise  the  mat- 
ter with  him,  but  should  deal  only  with  his  counsel.     It  is 
incumbent   upon    the   lawyer    most    particularly    to   avoid 
everything  that   may   tend  to   mislead   a  party   not  repre- 
sented by  counsel,  and  he  should  not  undertake  to  advise 
him  as  to  the  law. 

10.  Acquiring     Interest     in     Litigation- — The     lawyer 
should  not  purchase  any  interest  in  the  subject-matter  of 
the  litigation  which  he  is  conducting. 

11.  Dealing  With  Trust  Property. — Money  of  the  client 
or  other  trust  property  coming  into  the  possession  of  the 
lawyer  should  be  reported  promptly,  and  except  with  the 
client's  knowledge  and  consent,  should  not  be 'commingled 
with  his  private  property  or  be  used  by  him. 

12.  Fixing    the    Amount    of    the    Fee. — In    fixing    fees, 
lawyers    should    avoid    charges   which    overestimate    their 
advice   and   services,   as   well   as   those  which   undervalue 
them.     A  client's  ability  to  pay  cannot  justify  a  charge  in 
excess  of  the  value  of  the  service,  though  his  poverty  may 
require  a  less  charge,  or  even  none  at  all.    The  reasonable 


310  APPENDIX. 

requests  of  brother  lawyers,  and  of  their  widows  and  or- 
phans without  ample  means,  should  receive  special  and 
kindly  consideration. 

In  determining  the  amount  of  the  fee,  it  is  proper  to 
consider:  (1)  the  time  and  labor  required,  the  novelty  and 
difficulty  of  the  questions  involved  and  the  skill  requisite 
properly  to  conduct  the  cause ;  (2)  whether  the  acceptance 
of  employment  in  the  particular  case  will  preclude  the  law- 
yer's appearance  for  others  in  cases  likely  to  arise  out  of 
the  transaction,  and  in  which  there  is  a  reasonable  expecta- 
tion that  otherwise  he  would  be  employed,  or  will  involve 
the  loss  of  other  business  while  employed  in  the  particular 
case  or  antagonisms  with  other  clients ;  (3)  the  customary 
charges  of  the  Bar  for  similar  services ;  (4)  the  amount 
involved  in  the  controversy  and  the  benefits  resulting  to 
the  client  from  the  services;  (5)  the  contingency  or  the 
certainty  of  the  compensation ;  and  (6)  the  character  of 
the  employment,  whether  casual  or  for  an  established  and 
constant  client.  No  one  of  these  considerations  in  itself 
is  controlling.  They  are  mere  guides  in  ascertaining  the 
real  value  of  the  service. 

tn  fixing  fees  it  should  never  be  forgotten  that  the  pro- 
fession is  a  branch  of  the  administration  of  justice  and  not 
a  mere  money-getting  trade. 

13.  Contingent    Fees. — Contingent    fees,    where    sanc- 
tioned  by   law,    should   be   under    the   supervision    of   the 
Court,  in  order  that  clients  may  be  protected  from  unjust 
charges. 

14.  Suing  a  Client  for  a  Fee. — Controversies  with  clients 
concerning  compensation  are  to  be  avoided  by  the  lawyer 
so  far  as  shall  be  compatible  with  his  self-respect  and  with 
his   right  to   receive    reasonable   recompense   for   his    ser- 
vices; and  lawsuits  with  Clients  should  be  resorted  to  only 
to  prevent  injustice,  imposition  or  fraud. 

15.  How  Far  a  Lawyer  May  Go  in  Supporting  a  Client's 
Cause. — Nothing  operates  more  certainly  to   create  or  to 
foster  popular  prejudice  against  lawyers  as  a  class,  and  to 


APPENDIX.  311 

deprive  the  profession  of  that  full  measure  of  public  esteem 
and  confidence  which  belongs  to  the  proper  discharge  of  its 
duties  than  does  the  false  claim,  often  set  up  by  the  un- 
scrupulous in  defense  of  questionable  transactions,  that  it 
is  the  duty  of  the  lawyer  to  do  whatever  may  enable  him 
to  succeed  in  winning  his  client's  cause. 

It  is  improper  for  a  lawyer  to  assert  in  argument  his 
personal  belief  in  his  client's  innocence  or  in  the  justice  of 
his  cause. 

The  lawyer  owes  "entire  devotion  to  the  interest  of  the 
client,  warm  zeal  in  the  maintenance  and  defense  of  his 
rights  and  the  exertion  of  his  utmost  learning  and  ability," 
to  the  end  that  nothing  be  taken  or  be  withheld  from  him, 
save  by  the  rules  of  law,  legally  applied.  No  fear  of  ju- 
dicial disfavor  or  public  unpopularity  should  restrain  him 
from  the  full  discharge  of  his  duty.  In  the  judicial  forum 
the  client  is  entitled  to  the  benefit  of  any  and  every  rem- 
edy and  defense  that  is  authorized  by  the  law  of  the  land, 
and  he  may  expect  his  lawyer  to  assert  every  such  remedy 
or  defense.  But  it  is  steadfastly  to  be  borne  in  mind  that 
the  great  trust  of  the  lawyer  is  to  be  performed  within  and 
not  without  the  bounds  of  the  law.  The  office  of  attorney 
does  not  permit,  much  less  does  it  demand  of  him  for  any 
client,  violation  of  law  or  any  manner  of  fraud  or  chicane. 
He  must  obey  his  own  conscience  and  not  that  of  his  client. 

16.  Restraining  Clients  from  Improprieties. — A  lawyer 
should  use  his  best  efforts  to  restrain  and  to  prevent  his 
clients  from  doing  those  things  which  the  lawyer  himself 
ought  not  to  do,  particularly  with  reference  to  their  con- 
duct towards  Courts,  judicial  officers,  jurors,  witnesses  and 
suitors.     Tf  a  client  persists  in  such  wrong-doing  the  law- 
yer should  terminate  their  relation. 

17.  Ill-Feeling  and  Personalities  Between  Advocates.— 
Clients,  not  lawyers,  are  the  litigants.  Whatever  may  be  the 
ill-feeling  existing  between  clients,  it  should  not  be  allowed 
to  influence  counsel  in  their  conduct  and  demeanor  toward 
each  other  or  toward  suitors  in  the  case.     All  personalities 


312  APPENDIX. 

between  counsel  should  be  scrupulously  avoided.  In  the 
trial  of  a  cause  it  is  indecent  to  allude  to  the  personal  his- 
tory or  the  personal  peculiarities  and  idiosyncrasies  of 
counsel  on  the  other  side.  Personal  colloquies  between 
counsel  which  cause  delay  and  promote  unseemly  wrang- 
ling should  also  be  carefully  avoided. 

18.  Treatment  of  Witnesses  and  Litigants. — A  lawyer 
should   always   treat   adverse  witnesses   and    suitors   with 
fairness  and  due  consideration,  and  he  should  never  min- 
ister to  the  malevolence  or  prejudices  of  a  client  in  the  trial 
or  conduct  of  a  cause.    The  client  cannot  be  made  the  keep- 
er of  the  lawyer's  conscience  in  professional  matters.     He 
has  no  right  to  demand  that  his  counsel  shall  abuse  the 
opposite  party  or  indulge  in  offensive  personalities.     Im- 
proper speech   is  not  excusable  on  the  ground  that  it  is 
what  the  client  would  say  if  speaking  in  his  own  behalf. 

19.  Appearance  of  Lawyer  as  Witness  for  His  Client. — 
When  a  lawyer  is  a  witness  for  his  client,  except  as  to 
merely  formal  matters,  such  as  the  attestation  or  custody 
of  an  instrument  and  the  like,  he  should  leave  the  trial  of 
the  case  to  other  counsel.     Except  when  essential  to  the 
ends  of  justice,  a  lawyer  should  avoid  testifying  in  Court 
in  behalf  of  his  client. 

20.  Newspaper     Discussion    of    Pending    Litigation.— 

Newspaper  publications  by  a  lawyer  as  to  pending  or  an- 
ticipated litigation  may  interfere  with  a  fair  trial  in  the 
Courts  and  otherwise  prejudice  the  due  administration  of 
justice.  Generally  they  are  to  be  condemned.  If  the  ex- 
treme circumstances  of  a  particular  case  justify  a  state- 
ment to  the  public,  it  is  unprofessional  to  make  it  anon- 
ymously. An  ex  partc  reference  to  the  facts  should  not  go 
beyond  quotation  from  the  records  and  papers  on  file  in 
the  Court;  but  even  in  extreme  cases  it  is  better  to  avoid 
any  ex  parte  statement. 

21.  Punctuality  and  Expedition. — It  is  the  duty  of  the 
lawyer  not  only  to  his  client,  but  also  to  the  Courts  and 


APPENDIX.  313 

to  the  public  to  be  punctual  in  attendance,  and  to  be  concise 
and  direct  in  the  trial  and  disposition  of  causes. 

22.  Candor  and  Fairness. — The  conduct  of  the  lawyer 
before  the  Court  and  with  other  lawyers  should  be  charac- 
terized by  candor  and  fairness. 

It  is  not  candid  or  fair  for  the  lawyer  knowingly  to  mis- 
quote the  contents  of  a  paper,  the  testimony  of  a  witness, 
the  language  or  the  argument  of  opposing  counsel,  or  the 
language  of  a  decision  or  a  text-book;  or  with  knowledge 
of  its  invalidity,  to  cite  as  authority  a  decision  that  has 
been  overruled,  or  a  statute  that  has  been  repealed ;  or  in 
argument  to  assert  as  a  fact  that  which  has  not  been 
proved,  or  in  those  jurisdictions  where  a  side  has  the  open- 
ing and  closing  arguments  to  mislead  his  opponent  by  con- 
cealing or  withholding  positions  in  his  opening  argument 
upon  which  his  side  then  intends  to  rely. 

It  is  unprofessional  and  dishonorable  to  deal  other  than 
candidly  with  the  facts  in  taking  the  statements  of  wit- 
nesses, in  drawing  affidavits  and  other  documents,  and  in 
the  presentation  of  causes. 

A  lawyer  should  not  offer  evidence,  which  he  knows  the 
Court  should  reject,  in  order  to  get  the  same  before  the 
jury  by  argument  for  its  admissibility,  nor  should  he  ad- 
dress to  the  Judge  arguments  upon  any  point  not  properly 
calling  for  determination  by  him.  Neither  should  he  in- 
troduce into  an  argument,  addressed  to  the  Court,  remarks 
or  statements  intended  to  influence  the  jury  or  bystanders. 

These  and  all  kindred  practices  are  unprofessional  and 
unworthy  of  an  officer  of  the  law  charged,  as  is  the  lawyer, 
with  the  duty  of  aiding  in  the  administration  of  justice. 

23.  Attitude  Toward  Jury. — All  attempts  to  curry  favor 
with  juries  by  fawning,  flattery  or  pretended  solicitude  for 
their  personal  comfort  are  unprofessional.     Suggestions  of 
counsel,  looking  to  the  comfort  or  convenience  of  jurors, 
and   propositions   to   dispense   with    argument,   should   be 
made  to  the  Court  out  of  the  jury's  hearing.     A  lawyer 
must  never  converse  privately  with  jurors  about  the  case; 


314  APPENDIX. 

and  both  before  and  during  the  trial  he  should  avoid  com- 
municating with  them,  even  as  to  matters  foreign  to  the 
cause. 

24.  Right  of  Lawyer  to   Control  the   Incidents  cf  the 
Trial. — As  to  incidental  matters  pending  the  trial,  not  af- 
fecting the  merits  of  the  cause,  or  working  substantial  prej- 
udice   to    the    rights    of    the    client,    such    as    forcing    the 
opposite  lawyer  to  trial  when  he  is  under  affliction  or  be- 
reavement;  forcing   the   trial   on   a   particular   day    to    the 
injury  of  the  opposite  lawyer  when   no  harm   will   result 
from  a  trial  at  a  different  time;  agreeing  to  an  extension  of 
time  for  signing  a  bill  of  exceptions,  cross  interrogatories 
and  the  like,  the  lawyer  must  be  allowed  to  judge.     In  such 
matters  no  client  has  a  right  to  demand  that  his  counsel 
shall  be  illiberal,  or  that  he  do  anything  therein  repugnant 
to  his  own  sense  of  honor  and  propriety. 

25.  Taking  Technical  Advantage  of  Opposite  Counsel ; 
Agreements    With    Him. — A    lawyer    should    not    ignore 
known  customs  or  practice  of  the  Bar  or  of  a  particular 
Court,  even  when  the  law  permits,  without  giving  timely 
notice  to   the  opposing  counsel.      As   far  as   possible,   im- 
portant agreements,  affecting  the  rights  of  clients,  should 
be  reduced  to  writing;  but  it  is  dishonorable  to  avoid  per- 
formance of  an   agreement   fairly   made   because   it   is   not 
reduced  to  writing,  as  required  by  rules  of  Court. 

26.  Professional  Advocacy  Other  Than  Before  Courts. 
— A  lawyer  openly,  and  in  his  true  character  may  render 
professional  services  before  legislative  or  other  bodies,  re- 
garding  proposed   legislation    and    in    advocacy    of   claims 
before   departments   of   government,   upon   the   same   prin- 
ciples of   ethics   which  justify   his   appearance   before   the 
Courts;  but  it  is  unprofessional  for  a  lawyer  so  engaged  to 
conceal    his    attorneyship,    or    to    employ    secret    personal 
solicitations,  or  to  use  means  other  than  those  addressed 
to  the  reason  and  understanding  to  influence  action. 

27.  Advertising,  Direct  or  Indirect. — The  most  worthy 
and  effective  advertisement  possible,  even  for  a  young  law- 


APPENDIX.  315 

yer,  and  especially  with  his  brother  lawyers,  is  the  estab- 
lishment of  a  well-merited  reputation  for  professional 
capacity  and  fidelity  to  trust.  This  cannot  be  forced,  but 
must  be  the  outcome  of  character  and  conduct.  The  pub- 
lication or  circulation  of  ordinary  simple  business  cards, 
being  a  matter  of  personal  taste  or  local  custom,  and  some- 
times of  convenience,  is  not  per  se  improper.  But  solicita- 
tion of  business  by  circulars  or  advertisements,  or  by  per- 
sonal communications  or  interviews,  not  warranted  by 
personal  relations,  is  unprofessional.  It  is  equally  unpro- 
fessional to  procure  business  by  indirection  through  touters 
of  any  kind,  whether  allied  real  estate  firms  or  trust  com- 
panies advertising  to  secure  the  drawing  of  deeds  or  wills 
or  offering  retainers  in  exchange  for  executorships  or  trust- 
teeships  to  be  influenced  by  the  lawyer.  Indirect  advertise- 
ment for  business  by  furnishing  or  inspiring  newspaper 
comments  concerning  causes  in  which  the  lawyer  has  been 
or  is  engaged,  or  concerning  the  manner  of  their  conduct, 
the  magnitude  of  the  interests  involved,  the  importance  of 
the  lawyer's  positions,  and  all  other  like  self-laudation,  defy 
the  traditions  and  lower  the  tone  of  our  high  calling,  and 
are  intolerable. 

28.  Stirring  up  Litigation,  Directly  or  Through  Agents. 
—It  is  unprofessional  for  a  lawyer  to  volunteer  advice  to 
bring  a  law-suit,  except  in  rare  cases  where  ties  of  blood, 
relationship  or  trust  make  it  his  duty  to  do  so.  Stirring  up 
strife  and  litigation  is  not  only  unprofessional,  but  it  is  in- 
dictable at  common  law.  It  is  disreputable  to  hunt  up 
defects  in  titles  or  other  causes  of  action  and  inform  there- 
of in  order  to  be  employed  to  bring  suit,  or  to  breed  litiga- 
tion by  seeking  out  those  with  claims  for  personal  injuries 
or  those  having  any  other  grounds  of  action  in  order  to 
secure  them  as  clients,  or  to  employ  agents  or  runners  for 
like  purposes,  or  to  pay  or  reward,  directly  or  indirectly, 
those  who  bring  or  influence  the  bringing  of  such  cases  to 
his  office,  or  to  remunerate  policemen,  court  or  prison 
officials,  physicians,  hospital  attaches  or  other  who  may 


316  APPENDIX. 

succeed,  under  the  guise  of  giving  disinterested  friendly 
advice,  in  influencing  the  criminal,  the  sick  and  the  in- 
jured, the  ignorant  or  others,  to  seek  his  professional  ser- 
vices. A  duty  to  the  public  and  to  the  profession  devolves 
upon  every  member  of  the  Bar,  having  knowledge  of  such 
practices  upon  the  part  of  any  practitioner,  immediately  to 
inform  thereof  to  the  end  that  the  offender  may  be  dis- 
barred. 

29.  Upholding  the  Honor  of  the  Profession. — Lawyers 
should  expose  without  fear  or  favor  before  the  proper  tri- 
bunals corrupt  or  dishonest  conduct  in  the  profession,  a'nd 
should   accept   without   hesitation     employment   against  a 
member  of  the  Bar  who  has  wronged  his  client.    The  coun- 
sel upon  the  trial  of  a  cause  in  which  perjury  has  been 
committed,  owe  it  to  the  profession  and  to  the  public  to 
bring  the  matter  to  the  knowledge  of  the  prosecuting  au- 
thorities.     The   lawyer   should    aid   in   guarding   the    Bar 
against  the  admission  to  the  profession  of  candidates  unfit 
or  unqualified  because  deficient  in  either  moral  character 
or  education.     He  should  strive  at  all  times  to  uphold  the 
honor  and  to  maintain  the  dignity  of  the  profession  and 
to  improve  not  only  the  law,  but  the  administration  of  jus- 
tice. 

30.  Justifiable  and  Unjustifiable  Litigation. — The  law- 
yer must  decline  to  conduct  a  civil  cause  or  to  make  a  de- 
fense when  convinced  that  it  is  intended  merely  to  harrass 
or  to  injure  the  opposite  party  or  to  work  oppression  or 
wrong.    But  otherwise  it  is  his  right,  and,  having  accepted 
retainer,  it  becomes  his  duty  to  insist  upon  the  judgment 
of  the  Court  as  to  the  legal  merits  of  his  client's  claim. 
His  appearance  in  Court  should  be  deemed  equivalent  to 
an  assertion  on  his  honor  that  in  his  opinion  his  client's 
case  is  one  proper  for  judicial  determination. 

31.  Responsibility  for  Litigation. — No  lawyer  is  obliged 
to  act  either  as  adviser  or  advocate  for  every  person  who 
may  wish  to  become  his.client.    He  has  the  right  to  decline 
employment.     Every  lawyer  upon  his  own  responsibility 


APPENDIX.  317 

must  decide  what  business  he  will  accept  as  counsel,  what 
causes  he  will  bring  into  Court  for  plaintiffs,  what  cases 
he  will  contest  in  Court  for  defendants.  The  responsibility 
for  advising  questionable  transactions,  for  bringing  ques- 
tionable suits,  for  urging  questionable  defenses,  is  the  law- 
yer's responsibility.  He  cannot  escape,  it  by  urging  as  an 
excuse  that  he  is  only  following  his  client's  instructions. 

32.  The  Lawyer's  Duty  in  Its  Last  Analysis. — No  client, 
corporate  or  individual,  however  powerful,  nor  any  cause, 
civil  or  political,  however  important,  is  entitled  to  receive, 
nor  should  any  lawyer  render,  any  service  or  advice  involv- 
ing disloyalty  to  the  law  whose  ministers  we  are,  or  dis- 
respect of  the  judicial  office,  which  we  are  bound  to  up- 
hold, or  corruption  of  any  person  or  persons  exercising  a 
public  office  or  private  trust,  or  deception  or  betrayal  of  the 
public.  When  rendering  any  such  improper  service  or  ad- 
vice, the  lawyer  invites  and  merits  stern  and  just  con- 
demnation. Correspondingly,  he  advances  the  honor  of  his 
profession  and  the  best  interests  of  his  client  when  he  ren- 
ders service  or  gives  advice  tending  to  impress  upon  the 
client  and  his  undertaking  exact  compliance  with  the  strict- 
est principles  of  moral  law.  He  must  also  observe  and  ad- 
vise his  client  to  observe  the  statute  law,  though  until  a 
statute  shall  have  been  construed  and  interpreted  by  com- 
petent adjudication,  he  is  free  and  is  entitled  to  advise  as 
to  its  validity  and  as  to  what  he  conscientiously  believes  to 
be  its  just  meaning  and  extent.  But,  above  all,  a  lawyer 
will  find  his  highest  honor  in  a  deserved  reputation  for 
fidelity  to  private  trust  and  to  public  duty,  as  an  honest 
man  and  as  a  patriotic  and  loyal  citizen.' 

Ill 
OATH  OF  ADMISSION 

The  general  principles  which  should  ever  control  the 
lawyer  in  the  practice  of  his  profession  are  clearly  set 


APPENDIX. 

forth  in  the  following  Oath  of  Admission  to  the  Bar, 
formulated  upon  that  in  use  in  the  State  of  Washing- 
ton, and  which  conforms  in  its  main  outlines  to  the 
"duties"  of  lawyers  as  denned  by  statutory  enact- 
ments in  that  and  many  other  States  of  the  Union*- 
duties  which  they  "are  sworn  on  admission  to  obey  and 
for  the  wilful  violation  of  which  disbarment  is  pro- 
vided : 

I  DO  SOLEMNLY  SWEAR: 

I  will  support  the  Constitution  of  the  United  States  and 
the  Constitution  of  the  State  of 

I  will  maintain  the  respect  due  to  Courts  of  Justice  and 
judicial  officers ; 

I  will  not  counsel  or  maintain  any  suit  or  proceeding 
which  shall  appear  to  me  to  be  unjust,  nor  any  defense  ex- 
cept such  as  I  believe  to  be  honestly  debatable  under  the 
law  of  the  land ; 

I  will  employ  for  the  purpose  of  maintaining  the  causes 
confided  to  me  such  means  only  as  are  consistent  with  truth 
and  honor,  and  will  never  seek  to  mislead  the  Judge  or 
jury  by  any  artifice  or  false  statement  of  fact  or  law ; 

I  will  maintain  the  confidence  and  preserve  inviolate  the 
secrets  of  my  client,  and  will  accept  no  compensation  in 
connection  with  his  business  except  from  him  or  with  his 
knowledge  and  approval; 

I  will  abstain  from  all  offensive  personality,  and  advance 
no  fact  prejudicial  to  the  honor  or  reputation  of  a  party  or 


*  Alabama,  California,  Georgia,  Idaho,  Indiana,  Iowa,  Minnesota, 
Mississippi,  Nebraska,  North  Dakota,  Oklahoma,  Oregon,  South 
Dakota,  Utah,  Washington  and  Wisconsin.  The  oaths  administered 
on  admission  to  the  Bar  in  all  the  other  States  require  the  observ- 
ance of  the  highest  moral  principle  in  the  practice  of  the  profes- 
sion, but  the  duties  of  the  lawyer  are  not  as  specifically  defined  by 
law  as  in  the  States  named. 


APPENDIX.  319 

witness,  unless  required  by  the  justice  of  the  cause  with 
which  I  am  charged ; 

I  will  never  reject,  from  any  consideration  personal  to 
myself,  the  cause  cf  the  defenseless  or  oppressed,  or  delay 
any  man's  cause  for  lucre  or  malice.  SO  HELP  ME  GOD. 


\\'t  commend  this  form  of  oath  for  adoption  by  the  prop- 
er authorities  in  all  States  and  Territories. 


THE  IDEALS  OF  THE  AMERICAN  ADVOCATE— A  SYMPOSIUM. 


BY   HON.  SIMEON    E.   BALDWIN. 

Ex-Justice  Supreme  Court  of  Connecticut. 

Every  true  man  works  toward  an  ideal.  He  imposes  it  upon  him- 
self. In  the  rough  but  impressive  phrase  of  Emerson,  he  has  hitched 
his  wagon  to  a  star. 

To  this  responsibility  of  the  individual  there  is  added  for  every 
lawyer  a  responsibility  that  comes  from  without.  He  owes  a  special 
duty  to  his  profession,  and  to  the  world  because  he  is  of  that  profes- 
sion. Noblesse  oblige.  Nobility,  under  our  institutions,  does  not  be- 
long to  any  individual.  If  some  foreign  sovereign  decorates  an 
American  with  a  title,  it  confers  no  pre-eminence  upon  him  here. 
But  under  our  institutions  that  nobility  of  purpose  and  character 
which  belongs  to  the  legal  profession  in  other  countries  belongs  to 
it  in  equal  measure  in  the  United  States.  It  is  everywhere,  as  con- 
cerns its  most  conspicuous  office — the  advocacy  of  causes— a  profes- 
sion of  strenuous  and  chivalric  endeavor,  and  honored,  as  such, 
now,  as  much  as  in  any  former  times  or  other  lands. 

It  is  the  profession  of  those  who  contend  for  the  rights  of  others. 
Altruism  and  personal  sacrifice  are  its  foundations.  Let  a  lawyer 
plead  his  own  cause,  and  he  finds,  as  the  proverb  says,  that  he  has 
a  fool  for  his  client. 

The  Romans  put  this  strongly  in  their  Corpus  Juris:  "Advocates1 
who  resolve  the  doubtful  fates  of  causes  and  by  the  strength  of  their 
defense  often  set  up  again  that  which  had  fallen,  and  restore  that 
which  was  weakened,  whether  in  public  or  in  private  concerns,  pro- 
tect mankind  not  less  than  if  they  saved  country  and  home  by  battle 
and  by  wounds.  For  in  our  warlike  empire  we  confide  not  in  those 
alone  who  contend  with  swords,  shields  and  breastplates,  but  in 
advocates  also;  for  those  who  manage  others'  causes  fight  as  con- 
fident in  the  strength  of  glorious  eloquence,  they  defend  the  hope 
and  life  and  children  of  those  in  peril."* 

This"  sentiment  was  the  inspiration  of  Malesherbes,  when  he 
claimed  the  honor  of  defending  the  king,  whose  disregard  of  his 
counsels  had  cost  him  his  crown  and  was  to  ccst  him  his  life.  It 
was  the  inspiration  of  Denman,  in  supporting  the  rights  of  Queen 
Caroline;  of  Evarts,  before  the  senate  of  the  United  States  in  re- 
sisting the  impeachment  of  President  Johnson. 

*Code    II,    7    de   advocatis   diversor    um    judiciorum,    14. 


322  APPENDIX 

Great  occasions  like  these  come  seldom,  but  the  same  qualities  of 
advocacy  are  displayed  and  the  same  duties  of  advocacy  discharged 
daily  in  every  American  state.  Disregard  of  personal  interest  in  ful- 
fillment of  professional  obligations  sacrifice  of  personal  convenience 
to  secure  the  interests  of  others;  putting  all  the  powers  of  mind  and 
body,  in  one  supreme  effort  of  concentrated  energy,  at  the  service  of 
clients;  these  are  the  common  story  of  the  contests  of  the  bar. 

The  undue  multiplication  of  lawyers  in  the  United  States,  incident 
in  part  to  our  being  a  new  country,  and  in  part  to  our  being  a  great 
and  rich  one,  has  had  a  necessary  tendency  to  weaken  the  personal 
sense  of  what  is  due  from  him  to  his  profession,  on  the  part  of  each 
individual  member  of  it.  It  was  partly  to  counteract  this  tendency 
that  the  American  Bar  Association  was  organized  in  1878.  Its  influ- 
ence has  been  steadily  good.  It  has  not  only  consolidated  the  Ameri- 
can Bar,  but  has  helped  to  bring  together  that  of  every  state,  and  to 
put  before  it  a  high  standard  of  professional  honor  and  excellence. 
It  has  had  no  new  ideas  to  propose.  It  could  have  none.  The  ideals 
of  the  advocate  have  been  unchanged  since  the  first  foundation,  on 
a  sure  footing,  of  courts  of  justice.  They  are  all  bound  up  in  the 
one  thought  of  the  honor  of  the  profession.  Honesty  may  do  for 
the  office  lawyer.  Something  finer — honor — is  the  watchword  of  the 
court-house. 

The  advocate  can  achieve  the  ideals  of  his  profession  without  elo- 
quence. Simple,  plain,  straightforward  statement  is  often  better 
than  eloquence.  He  can  achieve  them  without  any  legal  learning 
that  could  be  called  profound.  A  fair  knowledge  of  law,  with  the 
power  to  make  the  most  of  what  he  knows,  is  generally  enough. 
He  cannot  achieve  them  without  a  high  sense  of  the  rights  of 
man,  as  man;  without  a  sincere  reverence  for  the  institutions  of 
human  justice;  without  patient,  sslf-l'orgetful,  chivalric  devotion  to 
his  client's  cause. 


BY    HON.    HENRY    WADE    ROGERS. 

Dean   of   the   Yale  Law   School. 

You  ask  for  an  expression  of  my  views  on  the  "Ideals  of  the 
American  Advocate."  I  know  of  no  reason  why  an  American  advo- 
cate's ideals  should  be  different  from  those  of  an  English  advocate, 
or  of  any  lawyer  in  the  active  practice  of  his  profession,  whether 
he  advises  clients  in  his  office  or  addresses  courts  and  juries.  In 
any  and  all  cases  he  acts  unworthily  if  he  disregards  the  fact  that 
he  is  a  minister  of  justice,  and  cannot  do,  as  a  lawyer,  anything 
which  dishonors  him  as  a  Christian  gentleman  and  a  law-abiding 
member  of  society. 


APPENDIX  393 

When  one  reflects  upon  the  lawyer's  ideals  there  comes  instinc- 
tively to  mind  Lord  Brougham's  celebrated  declaration  concerning 
an  advocate's  duty  to  his  client.  "An  advocate,"  he  said  in  his 
famous  defense  of  Queen  Caroline,  "in  the  discharge  of  his  duty 
knows  but  one  person  in  all  the  world,  and  that  person  is  his 
client.  To  save  that  client  by  all  means  and  expedients,  and  at 
all  hazards  and  costs  to  other  persons,  and  among  them  to  him- 
self, is  his  first  and  only  duty;  and  in  performing  this  duty  he 
must  not  regard  the  alarm,  the  torments,  the  destruction  he  may 
bring  upon  others.  Separating  the  duty  of  a  patriot  from  that  of 
an  advocate,  he  must  go  on,  reckless  of  consequences;  though  it 
should  be  his  unhappy  lot  to  involve  his  country  in  confusion." 
This  is  a  most  extraordinary  and  wholly  indefensible  and  unwor- 
thy statement  of  a  lawyer's  duty.  Brougham. was  undoubtedly  a 
remarkable  man  who  possessed  great  talents,  enjoyed  a  wide  fame 
and  played  a  very  conspicuous  part  in  public  affairs.  He  devoted 
himself  to  many  things.  He  was  not  merely  a  lawyer,  but  was  a 
man  of  letters,  a  njan  of  science,  a  statesman  and  one  who  as- 
pired to  excel  in  all  things  and  who  directed  his  attention  to  many 
branches  of  human  knowledge.  He  was  not  the  ideal  lawyer.  The 
law  was  not  congenial  to  him  and  in  his  early  life  he  spoke  of  it 
as  "the  cursedest  of  all  cursed  professions,"  and  referred  to  it  as 
an  "odious"  profession.  We  do  not  look  to  such  a  man  for  our 
professional  ideals.  In  his  own  day  there  were  better  and  greater 
advocates  at  the  bar,  and  on  the  bench  more  learned  judges.  We 
are  told  that  he  wanted  that  moral  elevation  which  inspires  con- 
fidence and  respect,  and  which  is  essential  to  lasting  fame.  The 
statement  I  have  quoted  from  him  proves  this  estimate  of  him  to 
be  correct.  If  his  declaration  were  to  be  accepted  no  honest  man 
could  enter  the  legal  profession,  or  having  entered  it  could  re- 
main in  it. 

We  live,  no  doubt,  in  a  commercial  age.  Its  aspirations  are  for 
wealth,  more  than  for  renown  or  service.  It  is  common  observa- 
tion that 

"The    learned    pate 

Ducks    to   the   golden   fool." 

The  bar  may  not  have  escaped  entirely  the  insidious  influence. 
No  calling,  not  even  the  ministry,  has  been  altogether  untouched 
by  it.  Every  profession  has  its  mercenary  side.  But  in  no  one  of 
the  learned  professions  is  avarice  the  leading  aim.  In  Robert 
Louis  Stevenson's  essay  on  "The  Morality  of  the  Profession  of 
Letters"  can  be  found  this  admirable  statement:  "The  salary  in 
any  business  under  heaven  is  not  the  only,  nor  indeed  the  first 
question.  That  you  should  continue  to  exist  is  a  matter  for  your 


324 


APPENDIX 


own  consideration;  but  that  your  business  should  be  first  hon- 
est, and  second  useful,  are  points  in  which  honor  and  morality 
are  concerned."  The  ethics  of  the  profession  require  that  a 
member  of  the  bar  shall  be  first  an  honest  man.  He  must  live 
in  rectitude  and  cherish  his  personal  honor,  not  forgetting  that 
personal  honor  is  the  distinguishing  badge  of  the  legal  profes- 
sion. 

BY    HON.    U.    M.    ROSE. 

Ex-President    American    Bar    Association 

It  was  a  maxim  of  Cato  the  Censor  that  the  orator  "is  a  good 
man  skilled  in  speaking."  Quintilian,  who  is  more  emphatic,  says: 
"Now,  according  to  my  definition,  no  man  can  be  a  complete  orator 
unless  he  is  a  good  man.  I  therefore  require  that  he  should  be  not 
only  all-accomplished  in  eloquence,  but  possessed  of  every  moral 
virtue." 

As  the  art  of  public  speaking  is  one  that  most  lawyers  must  exer- 
cise, these  sayings  have  often  been  applied  to  our  profession.  They 
may  seem  hard  at  first'  sight,  since  moral  perfection  is  not  attain- 
able in  our  present  state  of  existence.  But  it  must  be  remembered 
that  these  distinguished  men  were  speaking  of  the  ideal  orator;  a 
model  for  aspiration,  though  too  lofty  for  unimpaired  realization. 
Ths  complete  orator  and  the  perfect  man  are  equally  unknown;  but 
one  may  be  a  good  man  though  subject  to  many  frailties,  provided 
that  these  are  not  so  grave  or  numerous  as  to  stain  his  whole  char- 
acter. There  are  different  degrees  of  virtue,  but  the  habitual  exer- 
cise of  a  few  that  are  fundamental,  such  as  are  enjoined  by  legal 
ethics,  tends  to  a  gradual  and  general  elevation  of  character.  The 
central  idea  intended  to  be  imparted  by  these  two  classical  moral- 
ists is  undoubtedly  a  true  one. 

These  rules  are  not  the  work  of  Pharisaism,  or  the  outcome  of 
frivolous  and  over-refining  casuistry;  they  are  practical,  well  de- 
fined, profitable;  and  are  based  on  long  observation  and  experience. 
In  so  far  as  the  lawyer  fails  to  live  up  to  them  he  will  derogate 
from  his  own  best  interests,  will  bring  renroach  on  himself  and  his 
profession,  and  will  lay  up  provision  for  the  day  of  regret  and  re- 
morse. However  great  our  apostasy  may  be,  the  standards,  handed 
down  from  generation  to  generation,  are  still  there;  and  if  we  can 
by  any  effort  on  our  part  render  them  more  commanding  and  serv- 
iceable, the  line  of  duty  is  too  plain  to  admit  of  hesitation  or  dis- 
pute. They  do  not  embrace  the  entire  sphere  of  moral  sentiments; 
but  they  do  include  the  whole  circumference  of  professional  duties; 
erecting  standards  higher  and  more  exacting  than  those  which 
are  commonly  insisted  upon ;  standards  of  courtesy,  fairness,  hon.- 
esty,  fidelity,  truthfulness,  good  faith;  and  a  quality  of  disinterest- 


APPENDIX  325 

edness  by  no  means  common;  in  short,  all  of  the  attributes  that  go 
to  make  up  the  character  of  the  true  gentleman.  The  lawyer  who 
lives  up  to  these  mandates  stands  on  a  proud  eminence;  his  life, 
if  he  is  not  otherwise  deficient,  and  if  he  is  not  made  the  victim 
of  unrelenting  and  implabable  fate,  will  be  worth  much  in  the 
world;  while  his  influence  will  be  a  power  in  the  land. 

A  good  name  is  better  than  great  riches,  and  words  spoken  by  one 
who  sets  a  praiseworthy  and  consistent  example  to  his  fellowmen 
will  be  golden;  while  those  uttered  by  a  man  of  profligate  habita 
and  evil  life  will  be  as  chaff,  like  those  of  the  Duke  of  Wharton,  the 
most  brilliant  orator  of  his  time,  but  unprincipled,  and  the  slave  of 
many  vices,  described  by  Pope,  who  knew  him  well,  as  possessing 

"An  angel  tongue,  which  no  man  can  dissuade." 

Certainly  the  career  of  the  lawyer  is  beset  with  difficulties,  and  is 
exposed  to  many  temptations;  but  these  are  only  multiplied  and  en- 
hanced by  evil  practices. 

Consistently  with  allotted  space  only  one  other  point  may  be 
briefly  mentioned.  Fraternal  feeling  at  the  bar  is  something  that 
soitens  the  asperity  of  controversy,  tends  to  the  better  administra- 
tion of  justice  and  adds  to  the  pleasures  of  life.  It  is  neither  so 
active  nor  so  potent  in  our  country  as  in  others  that  might  be  named. 
The  reasons  are  obvious,  and  are  closely  allied  with  the  immense 
expanse  of  our  territory,  and  the  want  of  compactness  of  much  of 
our  population,  the  facility  of  admission  to  the  bar  which  is  often 
indulged,  and  the  general  looseness  of  discipline.  The  American 
lawyer  is  frequently  overworked.  In  England,  France  and  Italy 
the  advocate  is  relieved  of  much  drudgery  by  the  collaboration  of  at- 
torneys, a  well  trained  body  of  assistants,  leaving  him  more  time 
for  social  duties,  the  amenities  of  life,  and  the  widening  of  the 
field  of  endeavor.  Other  restrictions  peculiar  to  our  situation  might 
be  recited;  but  however  serious  the  obstacles  may  be,  it  is  never- 
theless true  that  the  lawyer  owes  an  affectionate  allegiance  to  his 
profession,  which  always  demands  a  grateful  remembrance;  and 
that  he  should  bring  ungrudgingly  his  quota  of  influence  to  the 
work  of  elevating  the  tone  of  the  bar,  cheerfully  lending  his  aid 
to  secure  the  harmony  of  its  members,  and  the  promotion  of  its 
dignity,  honor  and  usefulness. 

BY    HON.    T.    A.    SHERWOOD. 

Ex-Justice    Missouri    Supreme    Court. 

In  the  English  and  American  Law,  "advocate"  is  the  same  as 
"counsel,"  "counselor"  or  "barrister."  Web.  Diet. 

In  order  to  answer  the  requirements  of  the  idea  conveyed  by  the 
above  title,  premise  may  be  assumed  in  the  first  place,  that  the  per- 


326 


APPENDIX 


son  to  be  discussed  has,  of  course,  a  thorough  "knowledge  of  his  pro- 
fession, as  well  as  of  cognate  sciences,  for,  as  Sir  Walter  Scott  so 
tersely  observes,  "a  lawyer  who  knows  neither  literature  nor  his- 
tory is  a  mere  mechanic." 

Secondly — He  must  be  gifted  with  an  imagination  of  undoubted 
vigor  in  order  to  be  able  to  look  over  the  contemplated  forensic 
battlefield,  see  and  anticipate  what  the  adversary  is  likely  to  do, 
and  thus  put  himself  in  his  place.  Judge  Elliott  in  his  General 
Practice  very  deservedly  bestows  the  mead  of  great  praise  on  the 
imaginative  faculty,  as  being  a  necessity  of  legal  success.  And 
Beaconsfield  asserted  the  imagination  to  be  the  most  important 
factor  in  the  science  of  human  government. 

Napoleon,  too,  as  Bourienne  relates,  employed  the  mentioned  fac- 
ulty to  great  and  successful  advantage  when,  in  the  winter  pre- 
ceding his  joining  battle  with  the  Austrian  Melas,  he  used  a  map 
of  Italy,  on  which  with  pins  tipped  with  black  and  red  sealing  wax, 
he  delineated  the  respective  positions  of  the  Austrian  and  French 
troops,  and  the  location  of  the  battle-field.  Subsequent  events 
showed  a  victory  won  by  Napoleon,  where,  and  in  the  manner  and 
the  position  predicted. 

Thirdly — He  must  have  great  power  and  force  of  expression; 
the  faculty  usually  accompanies  the  imaginative  faculty,  because 
whatever  a  man  vividly  sees  with  mental  vision,  that  also  can  he 
vividly  describe.  Of  course  the  capability  of  speaking  fluently  and 
without  embarrassment,  is  seldom  attained  except  by  practice,  al- 
though Lord  Clive,  in  his  parliamentary  speech,  is  an  illustrious 
instance  to  the  contrary.  Charles  James  Fox,  the  ablest  debater 
the  world  ever  saw,  became  such,  he  declared,  by  boring  with  his 
forensic  efforts,  successive  parliaments  for  years. 

Fourthly — He  should  be  logically  as  well  as  legally  accurate. 
Such  bifold  accuracy  is  not  at  all  inconsistent  with  splendor  of 
imagery  nor  an  appropriate  flow  of  words.  S.  S.  Prentiss  of  Mis- 
sissippi, Rufus  Choate  of  Massachusetts,  are  conspicuous  exam- 
ples of  this  assertion's  correctness. 

Fifthly^ — He  should,  regardless  of  public  clamor  or  adverse  criti- 
cism, do  his  duty  as  he  conscientiously  sees  it.  If  he  chooses  to 
defend  a  man  charged  with  crime,  he  will  not  be  slack  in  his 
diligence  nor  in  his  vigilance  because  he  believes,  or  even  because 
he  knows  the  accused  is  guilty.  Ever^y  man,  though  guilty,  is 
entitled  to  the  same  orderly  method  of  procedure,  the  same  scru- 
pulous observance  of  all  legal  rights  and  forms,  as  if  wholly  in- 
nocent of  the  charge.  Captain  Kidd,  placed  on  trial  for  piracy,  is 
as  safely  guarded  by  the  law,  as  would  be  the  archangel  Gabriel, 
when  charged  with  a  like  offense. 


INJDEX 

A. 


ADMISSIONS, 

admissions  by  counsel  or  his  clients,  202. 
ADMISSION  TO  THE  BAR. 

academic  educational  requirements,  27. 

boards  of  law  examiners,  29. 

citizenship  and  residence  as  qualifications  for  admission,  20. 

good  moral  character  as  requisite  to  admission  to  the  bar,  23. 

intellectual  requirements  for  admission,  26. 

length  of  term  of  legal  study,  28. 

right  of  corporation  to  practice  law,  16. 

right  of  one  to  be  admitted  to  practice  law,  14. 

who  may  practice  law  in  America,  11. 
ADVERTISING, 

See  LEGAL  ETHICS. 

buying  up  a  cause  of  action,  301. 

divorce,  294. 

employment  of  runners,  299. 

general  considerations,  290. 

legal  directories  and  newspaper  notoriety,  222. 

office  furniture  and  modern  business  methods,  302. 

politics  as  an  advertising  medium,  296. 

pretending  to  be  learned  or  whelmed  with  business,  298. 

social  acquaintances  and  club  life,  297. 

stealing  another  attorney's  practice,  301. 

the  final  test  of  advertising  methods,  303. 
ADVOCACY, 

advocate's  relation  to.  the  state,  256. 

ancient  origin  of,  1. 

Greek  orators  as  advocates,  2. 

rise  of  advocacy  in  England,  4. 

the  advocate's  relation  to  the  court,  258. 

the  impersonality  of  the  advocate,  267. 

the  lawyer  and  advocate  in  America,  9. 


328 


INDEX. 


ADVOCATUS, 

earliest  Roman  professional  lawyer,  3. 

ALIBI, 

how  to  break  down  a  false  albi,  137. 

AMERICA, 

the  lawyer  and  advocate  in  America,  9. 
APPELLATE  PRACTICE, 

interruptions  by  the  court,  220. 

requisites  and  value  of  oral  argument,  216. 

the  lawyer's  brief;  its  requisites  and  value,  212. 
ATTORNEY  AT  LAW, 

See  ADMISSION  TO  THE  BAR. 

American  attorney  as  an  officer  of  the  court,  13. 

who  may  practice  law  in  America,  11. 

B. 

BARRISTER, 

calling  the  English  barrister  to  the  bar,  5. 

distinction  between  the  duties  of  barrister  and  solicitor  in  Eng- 
land, 8. 

when  a  barrister  becomes  a  king's  counsel,  5. 
BOARDS  OP  LAW  EXAMINERS, 
See  ADMISSION  TO  THE  BAR. 
BRIEFS, 

the  lawyer's  brief,  its  requisites  and  value,  212. 

c. 

CANONS  OF  PROFESSIONAL  ETHICS, 
acquiring  interest  in  litigation,  309. 
adverse  influences  and  conflicting  interests,  307. 
advertising,  direct  or  indirect,  314. 
advising  upon  the  merits  of  a  client's  cause,  309. 
appearance  of  lawyer  as  witness  for  his  client,  312. 
attempts  to  exert  personal  influence  on  the  court,  307. 
attitude  towards  the  jury,  313. 
candor  and  fairness,  313. 
contingent  fees,  310. 
dealing  with  trust  property,  309. 
fixing  the  amount  of  the  fee,  309. 

how  far  a  lawyer  may  go  in  supporting  a  client's  cause,  310. 
ill-feeling  and  personalities  between  advocates,  311. 
justifiable  and  unjustifiable  litigation,  316. 
negotiations  with  opposite  party,  309. 


INDEX. 


329 


CANONS  OF  PROFESSIONAL  ETHICS— CONTINUED. 

newspaper  discussion  of  pending  litigation,  312. 

oath  of  admission,  317. 

professional  advocacy  other  than  before  courts,  314. 

professional  colleagues  and  conflicts  of  opinion,  308. 

punctuality  and  expedition,  312. 

responsibility  for  litigation,  316. 

restraining  client  from  improprieties,  311. 

right  of  lawyer  to  control  the  incidents  of  the  trial,  314. 

stirring  up  litigation,  directly  or  through  agents,  315. 

suing  a  client  for  a  fee,  310. 

taking    technical    advantage    of    opposite    counsel;    agreements 
with  him,  314. 

the  defense  or  prosecution  of  those  accused  of  crime,  307. 

the  duty  of  the  lawyer  to  the  courts,  306. 

the  lawyer's  duty  in  its  last  analysis,  317. 

the  selection  of  judges,  306. 

treatment  of  witnesses  and  litigants,  312. 

upholding  the  honor  of  the  profession,  316. 

when  and  by  whom  prepared,  305. 

when  counsel  for  an  indigent  prisoner,  307. 
CLIENT, 

listening  to  client's  complaint,  35. 

sifting  the  client's  story,  36. 
COMMON  SENSE, 

the  foundation  of  good  advocacy,  32. 
COMPENSATION, 

See  LPXJAI,  ETHICS. 

contingent  fees,  286. 

general  considerations,  283. 

regulating  the  amount  of  the  fee,  284. 

the  history  of  the  honorarium,  283. 

when  the  advocate  may  contract  for  his  services,  289. 
CONSULTATION, 

See  LEGAL  OPINIONS. 
CORPORATIONS, 

encroachment  of  trust  companies  upon  the  practice  of  law,  18. 

right  of  corporations  to  practice  law,  16. 
COURT, 

the  advocate's  relation  to  the  court,  258. 
CRIMINAL  DEFENSE, 

cross-examination  by  the  defendant  in  a  criminal  case,  150. 

emphasizing  good  character  of  the  accused,  158. 

how  far  defense  should  show  its  hand  before  committing  magis- 
trate, 144. 


330 


INDEX. 


CRIMINAL   DEFENSE— COXTIXUED. 

how  to  deal  with  the  defective  indictment,  146. 

how  to  explain  away  difficult  and  awkward  points  in  the  evi 

dence,  157. 

how  to  handle  hostile  witnesses,  152. 
importance  closing  address  for  the  defense,  154. 
methods  of  objecting  to  evidence,  148. 
opening  statement  of  counsel  for  defendant,  147. 
the  young  lawyer  before  the  police  magistrate,  142. 
whether  or  not  witness  should  be  called,  153. 

CRIMINAL  PROSECUTION, 

concentrating  attack  on  the  defense  of  accused,  135. 
conduct  of  a  criminal  trial,  123. 
how  to  break  down  a  false  alibi,  137. 
interpreting  the  indictment  to  the  jury,  130. 
order  and  arrangement  of  opening  statement  of  public  prose- 
cutor, 132. 
prosecution  not  persecution,  125. 

CROSS  EXAMINATION, 

asking  questions  calling  forth  adverse  replies,  93. 

cross-examination  by  the  defendant  in  a  criminal  case,  150. 

cross-examination  of  evasive  and  hostile  witnesses,  93. 

dangers  of,  84. 

good  temper  of  cross  examiners,  86. 

hostile  methods  of  witness  to  be  emphasized,  88. 

knowledge  of  human  nature  as  essential,  82. 

manner,  style  and  tone  of  voice,  91. 

one  to  keep  silent  on  cross  examination,  86. 

D. 

DEFENDANT, 

as  to  how  to  open  defendant's  case  see  TRIAL  AND  PROCEDURE. 

DELAY, 

delaying  the  case  when  necessary,  207. 
DEPOSITIONS, 

superior  value  of  oral  testimony  to  written  depositions,  200. 

value  of  interrogatories  and  depositions,  48. 

DISBARMENT, 

as  a  method  for  enforcing  the  code  of  ethics,  255. 
DIVORCE, 

when  advertising  for  divorce  is  unethical,  294. 


INDEX. 


E. 


ELOCUTION, 

See  FORENSIC  ELOQUENCE. 
appropriate  physical  gestures  and  facial  expressions  in  speak- 

ing, 243. 

the  value  of  elocution  to  the  advocate,  240. 
ENGLAND, 

distinction  between  the  duties  of  barrister  and  solicitor  in  Eng- 

land, 8. 

origin  of  common  law  inns  of  court,  4. 
rise  of  advocacy  in  England,  4. 
ETfrlCS, 

See  LEGAL  ETHICS. 
EVIDENCE, 

arranging  and  marshalling  the  evidence  for  trial,  37. 
superior  value  of  oral  testimony  to  written  depositions,  200. 

EXAMINATION  IN  CHIEF, 

cross  examining  one's  own  witness,  77. 

fewest  possible  interruptions  and  questions,  73. 

irritable  and  unintellectual  questions,  75. 

leading  the  witness,  79. 

of  the  facts  to  be  elicited,  72. 

order  of  time  to  be  observed  in  eliciting  evidence,  76. 

proper  and  improper  questions,  74. 

verbose  questions  to  be  avoided,  80. 

F. 

FINE, 

as  a  method  for  enforcing  the  code  of  ethics,  255. 
FORENSIC  ELOQUENCE, 

See  ELOCUTION. 

the  value  and  requisite  of  forensic  eloquence,  227. 

G. 

GESTURES, 

appropriate  physical  gestures  and   facial  expressions   in  speak- 

ing, 243. 
GREECE, 

Greek  orators  as  advocates,  2. 


INDEX. 

H. 

HUMAN  NATURE, 

knowledge  of  as  essential  to  success  as  an  advocate,  33. 

I. 

INNS  OF  COURT, 

origin  of  common  law  inns  of  court,  4. 

ISCORATES, 

oration  prepared  for  King  of  Cyprus,  2. 

J- 

JUDGE, 

the  defendant^  attitude  towards  the  judge,  261,  306. 
JURIS   CONSULT, 

earliest  Roman  advisor,  3. 
JURY, 

ascertaining  motives  tending  to  influence  the  jury,  194. 

defendant's  legal  attitude  towards  the  jury,  262. 

delicacy  of  the  proceeding  to  impanel  the  jury,  192. 

preparing  address  to  the  jury,  52. 

winning   the   master   mind   of   the   jury   in   the   advocate's   ad- 
dress, 225. 


K. 


KING'S  COUNSEL, 
See  BARRISTER. 


L. 

LAWYER, 

See  ADMISSION  TO  THE  BAR. 

the  lawyer  and  advocate  in  America,  9. 
LEGAL  ETHICS, 

See  ADVERTISING. 
See  COMPENSATION. 

for  index  to  American  Bar  Association  of  legal  ethics  see  Can- 
ons of  Professional  Ethics. 

advocate's  relation  to  the  state,  256. 

becoming  a  party  to  a  fraud  or  maintaining  harassing  or  op- 
pressive litigation,  274. 

code  of  legal  ethics,  249. 


INDEX. 


333 


LEGAL  ETHICS— CONTINUED. 

defendant's  legal  attitude  towards  the  jury,  262. 

defending  one  whom  the  advocate  believes  to  be  guilty,  274. 

general  code  of  ethics,  247. 

how  far  are  the  client's  interest  supreme,  270. 

inviolability  of  the  code  of  ethics,  250. 

making  use  of  improper  methods  of  influence,  277. 

methods  of  enforcing  the  code,  254. 

professional  courts  of  honor  to  construe  the  code,  256. 

should  an  advocate  practice  in  a  court  in  which  the  judge  is 
his  near  kinsman,  265. 

the  advocate's  attitude  towards  the  opposing  counsel,  280. 

the  advocate's  relation  to  the  court,  258. 

the  advocate's  relation  to  his  profession,  278. 

the  defendant's  attitude  towards  the  judge,  261,  306. 

the   defendant's   attitude   towards   his   own   and   opposing   wit- 
ness, 263. 
•   the  impersonality  of  the  advocate,  267. 

to  what  extent  professional  conduct  is  affected  by  the  code,  252. 

LEGAL  OPINIONS, 

consultation  and  writing  of  legal  opinions,  34. 

LYNCHING, 

encouragement  of  lynching  as  ground  for  disbarment,  258. 

o. 

OFFICER, 

American  attorney  as  an  officer  of  the  court,  13. 

P. 

PATRON, 

Roman  patron  as  earliest  form  of  advocacy,  3. 
PLAINTIFF, 

as  to  how  to  open  plaintiff's  case  see  Trial  in  Procedure. 
PREPARATION  FOR  TRIAL, 

arranging  and  marshalling  the  evidence  for  trial,  37. 

discovering  and  determining  the  legal  outlines  of  a  case,  41. 

interviewing  the  adversary  party,  48. 

listening  to  client's  complaint,  35. 

preparing  address  to  the  jury,  52. 

sifting  the  client's  story,  36. 

the  theory  of  the  case  and  its  importance,  38. 

three  cardinal  requisites,  52. 


334 


INDEX. 


PREPARATION   FOR    TRIAL — CONTINUED. 

value  of  interrogatories  and  depositions,  48. 

what  to  do  with  the  weak  points  in  the  line  of  battle,  50. 

writing  up  the  law  of  the  case,  61. 
PUBLIC  PROSECUTION, 

police  testimony  not  to  l)e  implicitly  relied  upon,  134. 

R. 

RE-EXAMINATION, 

ceasing  opportunities  offered  by  the  cross-examination  to  intro- 
duce matter  otherwise  inadmissable,  101. 

dangers  of  re-examination,  99. 

repetition  of  evidence  in  chief  on  re-examination,  104. 

where  a  cross  examination  is  favorable  to  the  re-examiner,  100. 

where  character  and  credibility  of  witness  has  been  attacked,  102 
REPRIMAND, 

as  a  method  for  enforcing  the  code  of  ethics,  255. 
ROMAN, 

advocatus  as  earliest  Roman  professional  lawyer,  3. 

Roman  ^patron  as  earliest  form  of  advocacy,  3. 
RUNNERS, 

employment  of  as  unethical,  299. 

s. 

SERGEANT'S-AT-LAW, 

earliest  known  practioners  in  England,  5. 
SOLICITORS, 

distinction  between  the  duties  of  barrister  and  solicitor  in  Eng- 
land, 8. 

training,  admission  and  privileges  of  the  English  solicitor,  6. 
STATE, 

advocate's  relation  to  the  state,  256. 
SUSPENSION, 

as  a  method  for  enforcing  the  code  of  ethics,  255. 

T. 

TACT  AND  TACTICS, 

the  importance  and  value  of  tact  and  tactics  to  the  advocate,  189. 
THEORY  OF  THE  CASE, 

the  theory  of  the  case  and  its  importance,  ?,8. 


INDEX.  335 

TRIAL  AND  PROCEDURE. 

See  CRIMINAL  DEFENSE. 
See  CRIMINAL  PROSECUTION. 
See  CROSS-EXAMINATION. 
See  EXAMINATION  IN  CHIEF. 
See  JURY. 

See  PREPARATIONS  rou  TRIAL. 
See  RE-EXAMINATION. 

admissions  by  counsel  or  his  clients,  202. 

appeals  to  passion  or  prejudice  by  plaintiff  in  his  last  word,  IIS*. 

appropriate  physical  gestures  and  facial  expressions  in  spoak 
ing,  243. 

attacking  exaggerated  or  improper  evidence  by  defense  in  open 
ing  statement,  69. 

avoiding  any  of  defendant's  opening  statement,  65. 

delaying  the  case  when  necessary,  207. 

delicacy  of  the  proceeding  to  impanel  the  jury,  192. 

determining  the  leading  point  in  a  case,  195. 

discussion  of  principle  versus  the  citation  of  authority,  218. 

how  long  should  opening  statement  of  plaintiff  be,  61. 

how  to  address  the  jury,  221. 

hew  to  meet  an  unscrupulous  or  ill-natured  opponent,  207. 

how  to  open  plaintiff's  case,  54. 

how  to  take  care  of  the  weak  points  in  a  case,  201. 

narration,  not.  argument,  in  opening  statement.  5f>. 

opening  defendant's  case,  63. 

order  and  arrangement  of  the  reply,  113. 

requisites  and  value  of  oral  argument,  216. 

should   plaintiff   anticipate   defendant's   case   in   opening   state- 
ment, 55. 

summing  up  defendant's  case,  106. 

superior  value  of  oral  testimony  to  written  depositions,  200. 

the  best  point  of  attack  for  defendant  in  opening  statement,  64 

the  importance  of  plaintiff's  reply,  109. 

the  value  and  requisite  of  forensic  eloquence,  227. 

the  value  of  elocution  to  the  advocate,  240. 

the  value  of  moderation  in  opening  of  plaintiff's  statement,  b'J. 

the  value  of  the  last  word,  109,  204. 

winning   the    master    mind   of    ths   jury    in    the   advocate's   ad- 
dress, 225. 

TRUST  COMPANIES, 

encroachment  of  trust  companies  upon  the  practice  of  law,  18. 


336  INDEX- 

W. 

WOMEN, 

right  of  one  to  be  admitted  to  practice  law,  14. 
WITNESS, 

See  CROSS-EXAMINATION. 
See  EXAMINATION  IN  CHIEF. 
See  RE-EXAMINATION. 

the  convict  as  a  witness,  180. 

the  cunning  witness,  172. 

the   defendant's   attitude   towards   his   own   and   opposing    wit- 
ness, 263. 

the  dogged  witness,  168. 

the  flippant  witness.  166. 

the  handwriting  expert  as  a  witness,  182. 

the  hostile  witness,  170. 

the  lying  witness,  161. 

the  medical  witness,  185. 

the  nervous  witness,  171. 

the  official  witness,  175. 

the  policeman  as  a  witness,  176. 

the  private  detective  as  a  witness,  181. 

the  semi-professional  witness,  174. 

the  stupid  witness,  173. 

the  truthful  witness,  178. 

the  vanity  of  witnesses,  188. 

what  witnesses  should  be  called  and  in  what  order,  197. 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 
This  book  is  DUE  on  the  last  date  stamped  below. 


JUN     5  1984 


PSD  1916     8/77 


